The Anti-Abortion Supermajority: Beyond the Abortion Wars

CC: It isn’t simply my claim. It is the finding of poll after poll, year in and year out. There has been substantial opposition for decades, but it has been slowly and steadily growing. The most intriguing opposition comes from younger people–who are far more skeptical of abortion than Gen Xers and Baby Boomers were at their age. And they are very solidly against abortion. Indeed, twice as many Millennials who identify as pro-life feel strongly about their position on abortion when compared with young people who identify as pro-choice. Anyone who has been to the annual March for Life in Washington DC, for instance, can’t help but be impressed by the fact that the event is dominated by tens of thousands of young people who have traveled in from all over the country.

While any trend is open to political manipulation in the future, the main problem is that the pro-life supermajority doesn’t really have political vehicle for enacting its agenda at the federal level. Small-government Republicans, in their heart of hearts, are not all that excited about having a big federal government restrict abortion access and punish those who procure and perform abortions. Democrats are a more natural fit for the pro-life movement given their stated political philosophy, but accidents of history have made that difficult in the near-term.

It is hopeful that at the state level–where government is closest to the people–the pro-life supermajority has been able to enact some of its agenda. Indeed, by the end of June there already had  been over 300 pro-life laws proposed in 2015. At the local level, happily, federal political orthodoxies tend to break down and much more complicated and interesting debates take place. Complex coalitions and compromises are routinely created. Especially has a frustrated Millennial generation enters the political fray, I’m hopeful that the more complex and interesting politics of the states could make its way to the federal level.

AR: Do you see a decreasing role for the Supreme Court in abortion politics then? Will those opposing abortion have to change their approach since having Republicans appoint “socially conservative” judges has failed to change much?  Yet, it seems as if the Supreme Court is the royal road to effecting lasting social change.

CC: Yes and no. Kennedy, almost always the swing vote for complex abortion cases, helpfully blurs the lines between liberal/conservative. What he will use to determine whether a law passes constitutional muster is something called the “undue burden” standard. A law restriction abortion can be considered Constitutional, in his view, as long as it does not pose an undue burden on women. Indeed, not enough people talk about the fact that this standard–which came from the 1992 case Planned Parenthood v. Casey–has since replaced the privacy/autonomy/freedom standard of Roe v. Wade

Now obviously this standard leaves a lot of room open for interpretation. What counts as an “undue burden”, of course, will depend on both on what one thinks of the moral status of the prenatal child and on one’s view of the support our culture gives women who do not have recourse to abortion. I show in my book that this is an absolutely wonderful place for people who can get beyond our lazy liberal/conservative binary craft a new piece of legislation. In order to be considered Constitutional, any limitation of abortion will need to come with legislation which also limits the burden the restriction would put on women. For instance, Democrats for Life–while it strongly supports the Pain-Capable Act banning abortion beyond 20 weeks–is also supporting an amendment to the bill which provides mandatory paid family leave for women.

So it turns out that the move of a new generation to reject the strict liberal/conservative binary is precisely the kind of move which allows for creative thinking like this to flourish.

AR: Does Justice Kennedy’s use of strangely Catholic-sounding “dignity”language in his gay marriage majority opinion (it seems like a major innovation) open up such a road beyond liberal/conservative binaries? In other words, as Katherine Franke argues, does such language inadvertently open up new pathways for reigning in abortion on demand?