Abortion: The political gift that keeps on giving

The anti-abortion crowd keeps giving up U.S. elections over a matter that can’t realistically be legislated their way.

I am out on an errand. I am in the car, and I am flipping through radio stations. I stumble on Dana Loesch carrying on about yesterday’s news: the Arizona Supreme Court ruled that a dormant 1864-vintage state law banning abortion remained operational.

This ruling has inspired some anxiety among Republicans. Some of them appreciate that, since the US Supreme Court overturned “Roe-v-Wade” in Dobbs v. Jackson Women’s Health Organization 597 U.S. 215 (2022), the Democrats have had success aggravating concerns about access to abortion and inspiring voter turnout.

It’s not often I find myself on the same side as the conventional wisdom, but I am on that side with respect to the politics of abortion in the United States post-Dobbs.

I worked as a poll watcher in Virginia in the 2022 mid-term election. This was my second time working the polls, and I learned to have confidence in my local election apparatus. The people who make it work, in my estimation, really do make it work. But, in any case, I can’t help but comment on the failure of the “Red Wave” to wash over the 2022 elections, and I believe that there is something to the notion that the Dobbs decision helped diminish it.

Recall the great expectations of a “red wave” that would exceed the 2010 elections. The Republicans were expected to expand their majority in the House of Representatives as well as to sweep the Democrats out of the majority in the Senate.

This didn’t happen. And, I can remember guiding a young lady, adorned in a pink jumper, to the polling site. (The site was situated in a fire station, and there was some question about how one enters the site.) She was cheery. I was cheery. We were all very cheery, and she went in there, one must guess, to make an ostentatious point of voting against the mythical, white, evangelical patriarchy and in favor of abortion rights notwithstanding the fact that nothing about abortion was on the ballot and that the Republican candidate for Congress was a black fellow.

So, yesterday. The Supreme Court of the state of Arizona comes out with something about how an 1864 law really does impinge access to abortion notwithstanding the fact that no one had bothered to enforce the law since about 1864 …

At least two Republicans came right out and posted statements about how each of them does not support initiatives to impose further restrictions on access to abortion. That would have been Kari Lake, the 2024 Republican candidate for Senate in Arizona, and Donald J. Trump.

Dana Loesch was not pleased with their statements, characterizing those statements as nothing more than panicked posturing.

Maybe Dana’s right, but I don’t think so. My own view is that the abortion issue has proven to be like a zombie: The Dobbs decision tossed the abortion issue “back to the states,” and we were to expect that abortion would no longer aggravate politics at the federal level. But, here we are, fussing over dead-letter state law, specifically resurrected, it seems, to aggravate politics at the federal level.

The entire legal apparatus that had developed after Roe v. Wade (1973) had shifted the battle lines. It had endeavored to impose on the states a threshold level of access to abortion. Thresholds may be hard to define and enforce. Just as it may be hard to finely define a level of access to abortion, it may also be hard to define a level of access to, say, … handguns. But, the US Supreme Court in Heller v. District of Columbia (2008) said that the state can’t make it too, too difficult for people to access certain types of firearms. Roe v. Wade (and then Planned Parenthood 2006) had said that the state can’t make it too, too difficult for people to access abortion.

So, where does one draw the line on these things? Various states make big efforts to restrict access to firearms. Various states make big efforts to restrict access to abortion. Dobbs situates the abortion closer to Heller: The states have more control over where to draw the lines. But, there is still plenty of access in most states … to either handguns or abortion.

* * *

A naïve soul might have wished to see the Dobbs matter relegate the abortion matter “to the states!” and thus out of politics at the federal level. That was the whole point, wasn’t it? In 1972 the Supreme Court had pulled this idea of a constitutional right to abortion out of the air. (It was worse than that. The Court pulled it out of a shadow of shadow, a “penumbra,” that may not even have existed, of a right to privacy that was maybe kinda sorta not really implied by something not really in the Constitution.)

So, whatever mushy, poorly-defined, ever-litigated constraint Roe v. Wade had imposed—that was gone. It would be replaced with mushy, poorly-defined, ever-litigated constraints that states individually might or might not impose on access to abortion. The fight would move from one corner of the room to another.

I pose one observation and two speculations.

Observation: Constitutions that afford access to stuff make for a lot trouble, whereas constitutions that are limited to constraining government make for much more peaceful governance.

I’ve posed ideas about this kind of thing before in an essay titled “On the rationality of being politically brain-dead.” Specifically, there really is something distinctive about the American constitution. The framers really did limit it to negative rights: the central government is obligated to not do stuff against individuals. In this way, respecting the constitution amounts to respecting the rights of individual. These rights amount to precluding the predations of the state against the individual.

The American Constitution really is brilliant in this way. How did a bunch of upper-class fellows mostly in their thirties and forties—some, like Benjamin Franklin, much older than that—know to restrict the constitution to negative rights?

Note that the first half of the Universal Declaration of Human Rights (1948) is dedicated to negative rights, but the second half is dedicated to positive rights—that is, to “rights” to stuff that the state becomes constitutionally charged with providing. Providing people with stuff amounts to taking resources from other people to provide that stuff. The taking of resources can make for a predatory affair. Moreover, charging the state to provide stuff amounts to inspiring demand for the state to do stuff. And, guess what? Busy-bodies, who are the kind of people attracted to employment within the apparatus of a coercive state are more than pleased to satisfy demands for more government with the supply of more government. If that supply of government turns out to be coercive and taxing—well, you asked for it. “Govern me harder, Daddy!”

Now consider the Irish Constitution. It was much in the news in March 2024. The Republic of Ireland hosted a pair of referenda. As our friends at The Guardian observed, “Article 41 [in the Irish constitution] refers to the role of women in the home and defines the family as a unit based on marriage.” The “family amendment” to the constitution would have recognized “durable relationships” within the definition of “family.” The “care referendum” “would have replaced the reference to women in the home with a new provision recognising the role of carers.”

So, the proposed amendments to the Irish Constitution would have abolished women and apple pie from the constitution. In my uninformed, puzzled and hazy view of the matter, that’s where things were going.

The Irish Times reported that both amendments got crushed in the referenda:

I can yet imagine myself, were I an Irish lad, having voted with the sizable majority in both cases. Why? Because it is not obvious how a government that has already engaged in abundant mischief would exploit seemingly anodyne changes to the Constitution. But, note what’s going on here. The Irish constitution comes out of a civil code tradition, and it is out of just such a tradition that an enumeration of positive rights would obtain. So, for example, Article 41 of the Irish Constitution (at page 164) indicates that,

the State recognises that by her life within the home, woman gives to the state a support without which the common good cannot be achieved.

Accordingly,

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

One can imagine how such language may offend certain current-day sensibilities, but was there a problem being addressed here? What mischief was the government setting itself up to pursue? But, I would suggest that a bigger issue is that constitutions that call on The State to endeavor to do stuff invites The State to engage in all types of mischief, all in the name of All Things Inviolable and Good. In one day and age, Motherhood and Apple Pie might encompass such things. In another age, however, these things might yet prove violable. These things, formerly inviolable, might come to be replaced with, say, All That is Transgender, in which case The State might start directing a lot resources into sterilizing children, all in the service of some party’s concept of The Common Good.

The Irish Constitution has an index. The index runs longer than the American Constitution. Beware constitutions with indices that run longer than the American Constitution. Such documents are laden with time bombs with long fuses. The explosions of these time bombs enable The State to establish the foundation of its arbitrary governance. Ultimately, arbitrary governance supplants constitutional governance.

Speculation: The Dobbs decision may have granted the states more capacity, individually, to regulate access to abortion, but it’s not obvious that access to abortion will change that much. Some states will tighten up access. Others will afford greater access. But, would doing something like rolling back access from 22 weeks to, say, 15 weeks really make a difference? I am guessing that, overall, the volume of abortions will not change much.

It would help to have some data to get some idea about what is going on post-Dobbs, and it turns out that the CDC has fitfully conducted “Abortion Surveillance” since 1969. Regrettably, post-Dobbs data will likely not be available until November 2025, but available data do indicate interesting patterns. There had been great debate in 1996 about what the effects of an important legislative initiative, “Welfare Reform,” would have on demand for abortion. Welfare Reform would impose a work requirement on mothers seeking welfare support. Would expecting mothers, who had been expecting welfare support, start aborting pregnancies in larger volumes? The idea here was that some prospective mothers would look forward to welfare supports were they to bear children, but, absent such supports, they would more likely abort. Would the data reveal a one-time spike in abortions? Would the volume of abortions rise to a higher plateau?

Admittedly, the decision to abort does involve getting pregnant in the first place. So, an alternative would be that prospective welfare recipients would more likely decline to get pregnant post-Welfare Reform. The volume of abortions might go down not because people were keeping their babies but because they were declining to get pregnant in the first place.

The data reveal that the volume of abortions declined sharply—by about one-third—immediately after the implementation of Welfare Reform. There had been about 1.2 million abortions a year. Post-reform, there were about 800,000 abortions. So, what was going on?

One can come up with a number of observationally-equivalent explanations, but it is hard not to argue that the work requirement embedded in welfare reform really did, somehow, induce a sharp decline in pregnancies that would have ultimately proven to be unwanted.

It is hard to find good research on this kind of thing, because the topic is so politicized.

Second speculation: If the most resolute opponents of abortion access really want to make progress, they will need to do it the old fashioned way. They will need to venture out among the masses and convert young women one-on-one and one-by-one. Most folks really do value having the option of getting an abortion whether or not they ever actually exercise that option. Trying to secure legislative solutions alienates these prospective voters and merely enables the proponents of abortion access to assemble winning electoral coalitions.

I have yet to be convinced that an anti-Dobbs backlash had not diminished the much-anticipated “red wave” in the 2022 mid-term elections. Such is my understanding of polling results in my neighborhood in 2022. And such is my understanding in the following year (2023) when the state of Virginia held elections for both houses of its legislature. The Republican governor, Glenn Youngkin, made an ostentatious point of talking about abortion access, notwithstanding the fact that nothing about abortion was on the ballot, and he himself was not running for re-election. He was just posturing. But why?

The Republicans in Virginia had controlled the lower house of the legislation (the House of Delegates), but they proceeded to lose control of that house, and they failed to secure control of the upper house (the Senate).

Governor Youngkin, it seems had been hoping to demonstrate his capacity to help capture both houses in the legislature, all as a way of demonstrating his viability as a Republican candidate to be President of the United States. Yet, the Republicans’ poor performance in 2023 destroyed Youngkin’s presidential prospects for 2024. And I believe that empty posturing about abortion yielded that result.

Meanwhile, Trump and Kari Lake endeavor to situate themselves where, it has appeared for decades, most of the electorate is situated with respect to abortion. Most of the electorate wants an option. Meanwhile, the Democrats use threats to abortion access, real or imagined, as powerful inducements to get people to vote. The pro-life activists need to factor that harsh reality in to their calculus.