Last week was a rare moment of clarity in the war on abortion rights. This week, Republicans, spooked by the backlash, will try to portray Democrats as the real extremists on abortion, aided by a political press anxious to dispel claims of bias. Will Democrats let them? So far, only some of them have figured it out.
Behind last week’s outrage at total abortion bans was the fact that high-level Republicans lost control of their state troops. They abandoned the official strategy of legislative gaslighting: Make abortion impossible to access, but don’t openly ban it to maintain plausible deniability, and change the subject to politically unpopular later abortions whenever possible. Indeed, the blowback to total bans in Alabama, Georgia, and beyond was so fierce even Trump’s tweets distanced the president from them on Saturday night, implicitly warning Republicans to slow their roll and let Trump’s judges unravel Roe v. Wade and the 1992 decision that essentially affirmed it, Planned Parenthood v. Casey. “We have come very far in the last two years with 105 wonderful new Federal Judges (many more to come), two great new Supreme Court Justices, the Mexico City Policy, and a whole new & positive attitude about the Right to Life,” he wrote. “If we are foolish and do not stay UNITED as one, all of our hard fought gains for Life can, and will, rapidly disappear!”
Overturning a nearly half-century-old precedent, which is what Roe v. Wade is, or amending the Constitution, is by definition an extreme position. Using the democratic process to write into state law what Roe v. Wade and its descendants have long promised — abortion is legal until viability, but exceptions must be made for a woman’s health — is cementing the status quo, but when Democratic legislators in New York and Virginia did it, they were accused of supporting infanticide and were seemingly unready to respond to the charge. Republicans like to focus on the less than one percent of abortions that happen after 24 weeks, arguing that allowing women exceptions for reasons of health is, in the words of Paul Ryan, “a loophole wide enough to drive a Mack truck through it.” The implication is that women will deceitfully exploit health exceptions to abort in the third trimester for fun.
According to Kelly Baden, who works with state legislators on reproductive rights at State Innovation Exchange, laws protecting abortion access if the Supreme Court overturns Roe have stalled, because “some nominally pro-choice Democratic state legislators in leadership feel scared to move,” citing the backlash in New York and Virginia, “increased hostility towards legislators supporting these bills, or fear of political retribution.” She hopes last week’s total bans will light a fire under these legislators.
Maybe they’ll stiffen the spines of presidential candidates, too. Some, like Elizabeth Warren, and to a less detailed extent, Gillibrand and Klobuchar, have proposed federal legislation — impossible to achieve without Democrats claiming the U.S. Senate, but a proactive move nonetheless. Still, even the most assertive candidate will have to answer questions that accept the conservative framing intended to trap them. Over the weekend, Pete Buttigieg proved adept at navigating these choppy waters, while Bernie Sanders stumbled.
“You talk about the extreme, as you call it on one side — let me make the case, and you can answer it on the other side, because folks say that one of the concerns is that a number of Democratic senators are not willing to see restrictions on late-term abortions, abortions after 24 weeks, as we enter the third trimester,” Fox News’ Chris Wallace told Amy Klobuchar on Sunday. “Now, that’s only one percent of all abortions in the country, but even one percent is 6,000 abortions after 24 weeks, when a fetus might well be viable.” He repeated that 6,000 abortions number later that day at a town hall with Pete Buttigieg.
But Wallace, who has shown a willingness to break from his network’s party line, was distorting the law and the numbers. New York’s new law, for example, does restrict abortion at 24 weeks, except in the “absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.” A Virginia proposal that never became law would have continued to ban third-trimester abortions, but would have made it less onerous to qualify for a health exception. And that one percent number is only partly right: The CDC says 1.3 percent of abortions in 2015 were at or after 21 weeks, not 24, and the third trimester begins at 28 weeks.
So what? If the Trump era has taught us anything, it’s that responding to grisly propaganda with facts and figures, or what the law says, only gets you so far. Klobuchar’s answer was firm — “I’m okay with the law, Chris, and what the law says is that in that third trimester, it is allowed to protect the health and the life of the mother” — but dry and legalistic.
Buttigieg did better, because he firmly grounded the law in actual people’s lives and the question of who gets to decide. Polls consistently show that later abortions worry voters, unless you ask people about real-life circumstances. (For example, 59 percent of respondents in a Harvard poll said that abortion after 24 weeks is acceptable if a woman has been diagnosed with Zika).
“The dialogue has gotten so caught up in where you draw the line. I trust women to draw the line,” Buttigieg said in his town hall. Wallace pressed, “You would be okay with a woman well into the third trimester to obtain an abortion?” When Buttigieg replied, “These hypotheticals are set up to provoke a strong emotional reaction,” Wallace countered with his (again, inaccurate) “6,000 women a year who get an abortion in the third trimester” factoid, and Buttigieg was ready.
“So, let’s put ourselves in the shoes of a woman in that situation. If it’s that late in your pregnancy, that means almost by definition you’ve been expecting to carry it to term,” Buttigieg said. He described women who have “perhaps chosen a name, women who have purchased a crib” getting “the most devastating medical news of their lifetime … That decision isn’t going to be made any better, medically or morally, because the government is dictating how that decision should be made.”
Sure, it didn’t didn’t prevent him from being caricatured by Republicans as a babykiller, just as it didn’t inoculate Hillary Clinton, who gave a similarly humane answer in a 2016 debate, from being accused on the spot of ripping 9-month-old fetuses from wombs. But the recognition of, and refusal to accept, the demonization of women who have post-viability abortions was refreshing. By contrast, Bernie Sanders seemed befuddled when, on Meet the Press, Chuck Todd abruptly presented him with another tendentious Republican framing.
“Are you in all concerned, though, about this idea that people may try to worry about the sex of a child, or essentially, are those types of restrictions on abortions something you’re open to?” Todd asked. Sanders, clearly caught by surprise, agreed that “that’s a concern,” and then stammered, “Well, that’s not a — I wouldn’t use a restriction on, that’s an issue that society has got to deal with, and it is of concern.” Todd pressed, “How would you deal with that in the law?” and Sanders admitted, “I don’t know how, at this particular point. I would deal with it, but that is an issue that we really have got to deal with.”
As much as the question seemed to be out of left field, it describes part of an actual Indiana law that the Supreme Court may take up before the election, so Democrats should be ready for it. Not only is sex-selective abortion not a thing in the United States, except as a way to stigmatize Asian-Americans, three federal judges who struck down the law last year were very clear that “nothing in the Fourteenth Amendment or Supreme Court precedent allows the State to invade this privacy realm to examine the underlying basis for a woman’s decision to terminate her pregnancy prior to viability.”
The question, again, is who gets to draw the line. Democrats should draw it too.