In 2019, Clarke Forsythe, senior counsel at Americans United For Life, an organization that has helped draft “heartbeat” legislation, cautioned his fellow anti-abortion activists: “State leaders need to be prudent and reflect not only on state elections but on national elections, and the pace of change the public might accept.”
Forsythe no doubt had two 2012 U.S. Senate elections in ruby-red states in mind. In Missouri, Republican Todd Akin was poised to defeat incumbent Democrat Claire McCaskillClaire Conner McCaskillEx-Rep. Akin dies at 74 Republicans may regret restricting reproductive rights Sunday shows preview: States deal with fallout of Ida; Texas abortion law takes effect MORE until he claimed that following a “legitimate rape,” the female body “has ways to shut that whole thing down.” In Indiana, Republican Richard Mourdock lost his race (to Democrat Joe DonnellyJoseph (Joe) Simon DonnellyBiden to have audience with pope, attend G20 summit Biden taps former Indiana Sen. Donnelly as ambassador to Vatican Republicans may regret restricting reproductive rights MORE) after declaring in a debate that “even when life begins in that horrible situation of rape, that’s something that God intended to happen.”
In the 2022 midterm elections, history may repeat itself. According to progressive pollster Sean McElwee, laws restricting reproductive rights (but facing court challenges) in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Ohio, South Carolina, and Texas — and the distinct possibility that the U.S. Supreme Court will overturn Roe v. Wade — give get-out-the-vote activists “a rage-inducing piece of content.”
A significant majority of Americans have consistently supported retaining Roe, which prohibits states from banning abortions before “fetal viability,” which the court set at 24 to 28 weeks after conception. In a recent Gallup poll, 58 percent of respondents (including 43 percent of Republicans) wanted to retain Roe as the law of the land, while 32 percent advocated repealing it. A majority of Americans oppose laws banning abortions in early stages of pregnancy. If the pregnancy was caused by rape or incest, 77 percent (including Donald TrumpDonald TrumpGrant Woods, longtime friend of McCain and former Arizona AG, dies at 67 Super PACs release ad campaign hitting Vance over past comments on Trump Glasgow summit raises stakes for Biden deal MORE) support a woman’s right to abort in the first trimester (52 percent as late as the third trimester). About 89 percent of abortions, it’s worth noting, are performed within the first 18 weeks of a pregnancy; 1.3 percent after 20 weeks.
At odds with public opinion in the United States, Texas’s fetal heartbeat law is not even popular with citizens of the Lone Star State. In a poll taken this spring, 54 percent of Texans indicated that abortion laws should either stay the same or be less restrictive; 33 percent thought they should be more restrictive. When asked what the legislature’s top priority should be, only 10 percent cited abortion regulations.
The Texas law, which the Supreme Court has refused to block, also exposes the hypocrisy of Republicans who claim they are champions of individual freedom and foes of government mandates. The law bans all abortions after cardiac activity can be detected (about six weeks after conception), which is often before a woman knows she is pregnant. It makes 85 to 90 percent of abortions performed in the state illegal. Texas joins several other states from the Old Confederacy in refusing to exempt victims of rape and incest (who often must make decisions amid anxiety, depression, and PTSD). A vaguely worded provision in the law permitting private citizens to bring civil litigation (with the possibility of collecting $10,000 or more in damages) against any individual who assists a pregnant woman in getting an abortion will, almost certainly, lead to outing, ostracism and harassment of doctors, nurses, therapists, friends and family members. And the law prevents clinics from recouping fees for attorneys, even if they prevail in court.
Advocates of reproductive rights have already been provided with the first of what are likely to be many “Mourdock moments” they can use in fundraising and voter registration drives. The Alabama statute, for example, makes performing an abortion a felony punishable by imprisonment for as much as 99 years or life. In South Carolina, a Republican state legislator circulated a flyer recommending that a rapist be referred to as “a sperm donor.”
In 2022, the Supreme Court is likely to discard Roe v. Wade, a 50-year-old precedent. Five — or six — justices may uphold the Texas law. Or, if they decide that the “vigilante” provision of that law violates rights of privacy and free speech, they may affirm a Mississippi statute that bans most abortions after 15 weeks, with no exemptions for victims of rape or incest.
Either way, their decisions will be announced several months before the midterm elections. In 2020, only 3 percent of Americans claimed abortion was the most important issue affecting their vote; about 89 percent of them supported Trump. In 2022 abortion restrictions will provide advocates of reproductive rights a “rage-inducing piece of content” the Republicans may regret.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of "Rude Republic: Americans and Their Politics in the Nineteenth Century."