Why some anti-abortion conservatives think Alabama’s abortion law goes too far

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An airplane displaying a banner reading “Abortion Is OK” circles the Alabama Capitol on May 15, 2019, in Montgomery.

Their argument is about not morality but strategy.

In the wake of Alabama’s ban on abortion, many anti-abortion conservatives were striking surprising notes of caution, with some national Republican lawmakers voicing disapproval.

Not about the moral rightness of the bill, which bans almost all abortions in the state, with no exceptions for cases of rape or incest — but about the bill’s strategic usefulness in the long march to the Supreme Court and eventually, they hope, the end of Roe v. Wade, Planned Parenthood v. Casey, and nationally legalized abortion itself.

To be clear, most Republicans oppose legal abortion, though the majority support limitations on abortion that would still permit the procedure in the case of rape or incest. So those expressing alarm about the Alabama bill are doing so because they think the legislation might ultimately prove counterproductive to their cause. Counterproductive because there’s a good chance the law won’t get before the Supreme Court, and because the unpopularity of the law nationally could put anti-abortion advocates on the defensive after, in their view, a decade of wins.

Or as one conservative writer put it, “the Alabama abortion law is the most damaging development to the pro-life movement in decades.”

This legislation is laser-focused on the Supreme Court — and so are the critiques

The purpose of this legislation, as both its supporters and detractors have made clear, is to get the issue of abortion before the Supreme Court. Anti-abortion advocates hope the Court has swung toward their side enough to effectively overturn Roe v. Wade, the 1973 Supreme Court decision that disallowed many state and federal restrictions on abortion because they interfered with a woman’s right to privacy; and Planned Parenthood v. Casey, the 1992 Supreme Court ruling that reaffirmed and slightly modified Roe, creating the “undue burden” standard for abortion legislation. (In short, if an abortion restriction creates a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability,” it fails the “undue burden” standard.)

National Review’s David French, for example, argued that the Alabama law and recent legislation passed in Georgia were tailor-made to “fundamentally undermine the case for abortion” by expanding the legal definition of life. He added that by essentially forcing the Supreme Court into an up-or-down vote on abortion, the national politics around the issue would in effect be “deescalated.” Basically, the Supreme Court would be forced to make a real choice about the issue, and with more conservatives on the Court, French argues that they’d likely make a decision in favor of the anti-abortion movement (and if they didn’t, anti-abortion Republicans would know where they stood, at least).

But some conservatives are arguing that though the Alabama law was effectively constructed with the sole purpose of beating Roe and Casey, the current makeup of the Supreme Court makes it unlikely they’ll tackle those precedents head on. On the May 15 edition of his daily radio show, conservative pundit Ben Shapiro said:

Now, here’s the reality: This bill is not going to go into effect, barring the Supreme Court overturning Roe v. Wade, which is not going to happen. I’ve been saying for a long time, Justice Kavanaugh is not going to vote for that. Justice Roberts is not going to vote for that. I have serious doubts whether the Supreme Court, as currently constituted, would vote to overturn Roe v. Wade.

Others are even less confident that the law will even make it that far. Kim Wehle, a professor at the University of Baltimore School of Law, wrote in the Bulwark that there’s a good chance that because the Alabama law decidedly does not meet the “undue burden” standard set by Casey, it would never reach the Supreme Court, and instead would be struck down by a lower court. She added that because of previous rulings like Roe and Casey, the Court could view the right to an abortion without “undue burdens” as settled law, and decline to hear a challenge to it.

And she wasn’t alone in sharing concerns about how the law would do in front of the Court — televangelist Pat Robertson made the same case on Wednesday on The 700 Club, a weekday syndicated Christian talk show.

But the Court isn’t the only factor at play in the debate among anti-abortion conservatives over the Alabama abortion ban — so is the court of public opinion.

“Public opinion cannot be ignored in a democratic republic”

While the majority of Republicans are against abortion, views on reproductive rights within the broader American electorate are far more complex. A 2018 Gallup poll found that just 29 percent of Americans believe abortion should be legal in all circumstances, but that outweighs the 18 percent of Americans who believe abortion should be illegal in all circumstances. The vast majority of Americans think abortion should be legal, with restrictions of some kind (abortions being permitted only within the first three months of pregnancy, for example).

Abortion is an extremely difficult issue for many Americans, and the Alabama law strikes many, including many anti-abortion Americans, as being too extreme. A Hill.TV poll found that a full 80 percent of Republican voters, for example, thought abortion should be legal at least in cases of rape or incest (if not in more cases).

Those fears were only heightened as some of the law’s biggest backers in Alabama made arguments that made some conservatives deeply uncomfortable. For example, in response to questions from a Democratic colleague regarding how the Alabama law would impact those who discard fertilized eggs at an in vitro fertilization (IVF) clinic, Republican Clyde Chambliss responded, “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant.” (When asked if a victim of incest would be able to access abortion, Chambliss responded, “Yes, until she knows she’s pregnant.”)

Some conservatives have even compared the bill to recent legislation passed in New York that legalized abortion after 24 weeks in cases where the mother’s life is not in danger — legislation that anti-abortion advocates found deeply problematic. (However, Missouri Sen. Josh Hawley said that the Alabama bill was a “direct response” to the New York legislation in his praise of the Alabama law). Guy Benson, a Fox News contributor and political editor of TownHall.com, tweeted that the bill went “too far” and was “far outside the mainstream” of public opinion.

And the editors of National Review agreed, writing that the lack of a rape or incest provision in the Alabama law might make “the ultimate extinction of abortion less likely” because of how deeply unpopular such legislation is nationally:

We have a good sense of what happens when the national debate focuses on banning abortion in this rare circumstance that accounts for less than 1 percent of abortions. In 2011 voters in Mississippi defeated an abortion ban that lacked this exception by 16 percentage points. In Alabama, laws can’t be repealed via a voter-driven referendum, but pro-life lawmakers should care about how their actions affect the cause of protecting life throughout the country. Nationwide, more than 75 percent of Americans think abortion should be legal early in pregnancy when the pregnancy was the result of rape. Public opinion cannot be ignored in a democratic republic, and it would be a grave error to insist that no lives should be saved until all lives can be saved.

It’s important to note that for anti-abortion conservatives, objections to the Alabama law are part of a political argument aimed at curtailing abortion, not a moral one. In general, many anti-abortion activists believe that abortion in the case of rape or incest only compounds the tragedy of those scenarios.

But politically, making that case is extraordinarily difficult, even impossible. As David Harsanyi, a conservative writer for the Federalist, argued Thursday, a lack of rape or incest provisions in the Alabama law means that anti-abortion advocates are “impelled to make the most challenging arguments about the rarest cases rather than make the most convincing arguments about the most common ones.” He added:

In the worst-case scenario for pro-lifers, the law might even wind up strengthening Roe v. Wade. If your goal is to save lives, not merely make pronouncements, this seems counterproductive—especially considering the fact that abortion advocates have been on the defensive for years.

Jonathan Last wrote in the Bulwark that the Alabama law banning abortion served as “virtue signaling” for the anti-abortion cause, arguing that the bill “will not prevent a single abortion” and “will not save the life of a single unborn child” and will only drive fundraising to abortion rights organizations from people outraged by the lack of rape and incest exceptions within the law.

I asked Last via email about his piece and his thoughts on the law, and he told me that while “I suppose it’s possible that the AL legislators thought they were making some bold legal maneuver,” if the law doesn’t get before the Supreme Court, “I don’t see how it can be judged as anything but a very significant mistake.”