Women’s Rights at Stake: How the Supreme Court and Abortion Laws Will Shape the 2016 Election
After months of relentless primary coverage, especially on the Republican side, voting finally — finally — starts in a month, with the Iowa caucus and the New Hampshire primary a little over a week later. Donald Trump is riding high going into the primary season and Islamic terrorism seems to be the primary issue motivating conservative voters, which is one reason his flagging campaign got a boost of energy moving toward the beginning of primary season.
But will it remain that way? It may not seem like it now, but in the coming months, the issue of reproductive rights, which has faded somewhat to the background, is going to come rushing to the front of voters’ minds. Looking forward to 2016, there’s very good reason to believe that reproductive rights might end up shaping the election more than any other issue, at least through the primary season and maybe even going into the summer.
You could be forgiven for thinking that right-wing hysteria over women’s rights had hit its peak in 2015, a year when conservatives decided to make public enemy No. 1 out of Planned Parenthood, an organization quite clearly chosen because it has long symbolized women’s right to sexual autonomy. But things might get even worse in 2016, for two major reasons. One, the Supreme Court will hear a case that is functionally about overturning Roe v. Wade and reinstituting state bans on abortion. Two, the presidential election will almost certainly be a match-up between an anti-choice man and a pro-choice woman, making the whole contest starkly symbolic of the struggle between women who want full equality and those who want to restore women to second-class status.
The Supreme Court has scheduled to hear arguments for Whole Woman’s Health v. Cole on March 2, the day after Super Tuesday, a day in which 12 states hold primaries or caucuses to vote for the presidential nominees. The case is a huge one and is conservatives’ best hope for eliminating the legal right to abortion. At stake is a Texas law, known as HB2, that passed a number of restrictions on abortion clinics that have led to clinic closures across the state.
The law, which requires clinics to meet hospital-style surgical center standards and to have hospital admitting privileges, was ostensibly passed to protect women’s health. No one actually believes that is the purpose of the law, however. None of the restrictions actually make abortion, which was already one of the safest outpatient procedures you can get, any safer. In fact, by making it so expensive to operate an abortion clinic that it’s functionally impossible for most providers, the law has already had a measurable negative impact on health outcomes in Texas, driving thousands of women in the state to seek unmonitored abortions on the black market.
In other words, it’s just a backdoor way to ban abortion. Roe v. Wade has made it illegal to ban abortion outright, so Texas is hoping to create so many legal hoops to jump through in order to provide abortion that it’s basically illegal. It’s the same strategy that Southern states used to deny blacks the vote in the Jim Crow era. Back then, byzantine legal requirements and red tape to register to vote kept them off the rolls without banning them from voting outright and now the same method is being used to keep abortion clinics from operating legally. If the Supreme Court upholds the right of states to pass any restriction they want on clinics, no matter how medically unnecessary, expect to see a rash of states passing requirements that make it physically impossible to provide legal abortion while maintaining that you still have the legal right, in the abstract.
For the election, what this means is that while Republican voters are voting in the primaries throughout February and going into March, the issue of abortion will be headline news all the time. Both pro- and anti-choice sides will be issuing statements, holding rallies, fanning representatives out across media, publishing Op-Eds and just generally increasing the noise around this issue.
While all this is going on, Hillary Clinton will likely be racking up wins in the Democratic primary, escalating the already high levels of right-wing anxiety over the possibility that we’re really going to be facing the first female president right on the heels of electing the first black president—and both of them being liberals. Abortion, being a stand-in for general conservative anxieties for women’s growing power and independence, is going to start looming even larger in the right-wing imagination. The right will feel an overwhelming desire to do some kind of damage to the feminist cause.
There’s not a lot of ideological diversity between Republican candidates now, so voting will depend largely on whoever appeals the most emotionally on whatever issue is most salient to conservative voters on the day they vote. We’ve already seen this when it comes to conservative antagonism toward Muslims. It’s not like Islamophobia is anything new — remember the “Ground Zero mosque“? — but the attacks in Paris and San Bernardino made the issue prominent again on the right. This, in turn, led to Trump’s bounce back in the polls, as he was perceived as willing to be the most publicly hateful to Muslims.
But now there’s a strong chance that hostility toward independent women and reproductive rights will start crowding out Islamophobia as the main motivator on the right again, especially if there are no more attacks to compete with abortion rights and Hillary Clinton in the headlines.
If that happens, expect Trump’s numbers to start slipping right when voters actually start voting. Because even though Trump is a loudmouthed, obnoxious misogynist,many on the right have their doubts about his enthusiasm to stop yapping and start doing the work necessary to strip women of their rights. Many on the Christian right have expressed skepticism about Trump’s antiabortion stance, noting that he seems dispassionate about the issue and worrying that his pro-choice past means that he’s just pretending to be antiabortion now. And even though Trump, like all the other Republican candidates, likes to engage in gross hyperbole about abortion itself, he’s made statements suggesting he’s not opposed to government funding of contraception and STI services. Since the attacks on Planned Parenthood are not about abortion but about stripping the organization of money to provide contraception and STI services, this soft stance toward the condom-users and pill-takers has not endeared Trump to Christian right voters.
Ted Cruz, on the other hand, is seen by many on the Christian right as a true believer, something that will help him if voters are going to the polls with hopes of ending legal abortion at the front of their minds.
Of course, the actual court decision won’t be out until June, by which time the Republicans will have a candidate. But either way, expect the decision to have some impact on voter turnout come November. If the court signs off on the backdoor abortion ban, that could move pro-feminist voters, especially young women, to turn out in higher numbers at the polls in hopes of electing Democrats who can pass federal legislation stopping states from regulating legal abortion out of existence. Or, conversely, if the court fails to allow this conservative scheme to ban abortion to proceed, expect irate conservatives to turn out in huge numbers, hoping a Republican majority will do more to reduce women’s access to affordable contraception and abortion. Oh yeah, and to keep a woman out of the White House, as well.