'A climate of fear': Roe’s fall has triggered bipartisan radicalization

On Monday, I recommended putting “democracy is on the ballot” in the background of the 2024 election and putting in the foreground concrete objectives – namely, abortion rights – that can only be achieved via democratic politics. My point was about campaign messaging by Democratic candidates, as if the choice were theirs.

But circumstances have a way of changing things.

The Texas Supreme Court ruled last week that a pregnant woman, whose baby had virtually no chance of surviving due to a genetic disorder, did not qualify for an exception to the state’s abortion ban. (She fled the state to get the procedure.) Meanwhile, the US Supreme Court accepted a case that could restrict access to mifepristone, the so-called abortion pill. And next year, voters in nearly a dozen states could enshrine abortion rights through constitutional amendments. These include states that will be pivotal to the presidential election.

Given this, my recommendation to put abortion rights in the foreground, and “democracy is on the ballot” in the background, seems shortsighted. The wheels are already in motion. Whether Joe Biden and the Democrats insist that “democracy is on the ballot” is probably beside the point, because you know what? Abortion rights sure are.

The ruling by the high court of Texas exposed a major weakness in antiabortion politics – that there was never a genuine intention of allowing for medical exceptions to total or near-total abortion bans. “The main takeaway here is that these exceptions are really meaningless in practice, especially when you have political actors who are dedicated to going after abortion,” said Cathren Cohen, an attorney with the UCLA Law Center on Reproductive Health, Law and Policy.

The Texas case is certainly the first of many. Pregnant women across antiabortion states are going to challenge medical exceptions in increasing numbers. The buildup will probably spill over into the Supreme Court’s ruling in the mifepristone case, which is expected in June of next year, right when the presidential election is getting hot.

Beneath it all is a groundswell of activity to put abortion rights in front of voters in ballot initiatives. The objective is protecting access by way of state constitutional amendments. Proponents beat attempts to strip abortions rights in Kansas and Kentucky. They succeeded in passing constitutional amendments in Michigan, California, Vermont and Ohio. Next up in abortion-rights protections are Maryland and New York with the possible inclusion of Arizona, Nevada, Colorado, Montana, Nebraska, Florida, Missouri, Arkansas and South Dakota.

Donald Trump and the Republicans should be worried. The thing about these ballot initiatives is that they motivate people to get educated, participate, contribute and vote – ultimately to the benefit of the presidential candidate who is most aligned with the cause.

In 2004, when more than a dozen states asked voters to approve laws banning same-sex marriage, turn out was huge compared to states that did not offer referendums. According to numerous studies, these ballot measures helped George W. Bush get reelected, because they mobilized voters in ways that ordinary campaign politics didn’t.

I might be right in saying that “democracy is on the ballot” should be put in the background of the 2024 presidential election. But it’s already in the background, and effective messaging had nothing to do with it.

The fall of Roe has radicalized people who would not normally act radically. It has mobilized them in ways unseen in decades. And it is a bipartisan radicalization. As Laura Chapin, a Democratic strategist who specializes in abortion, told me, the antiabortionists in the Republican Party are far behind their own supporters on this.

“Republican and independent voters have always been ahead of Republican politicians on this, because it fundamentally comes down to the value of keeping government and politicians out of your private business, something most people support regardless of party ID.”

JS: Can you explain, in legal and political terms, why exceptions to abortion bans, like the one in Texas, don't seem to allow for exceptions?

LC: Because, as the folks at Patient Forward put it, you can't legislate away bad pregnancy outcomes. Medical science doesn't work that way, and no doctor is going to take the risk of jail time in the hopes the courts will look benevolently upon their providing an abortion.

A 13-year-old girl in Mississippi gave birth, because even though that state's ban had a rape exception, there were no providers left in the state and no legal means for her to obtain an exception in any event.

Exceptions to abortion bans are predicated on the political judgment that an abortion has to be earned – that if the person has been traumatized enough, then they have earned the right to an abortion. If they haven't, however, they should be forced to give birth.

JS: I find it stunning when antiabortionists say they don't want abortion to be adjudicated democratically. One of them told Politico: "We don’t believe those rights should be subjected to majority vote.” Is it just me?

LC: Abortion rights and voting rights are inherently tied together. It's inherently undemocratic to block a vote on an issue that you know you're probably going to lose. Gerrymandering is how red states pass unpopular abortion bans, and the Supreme Court itself overturned Roe thanks in part to a seat Donald Trump and Mitch McConnell stole.

JS: Some antiabortion states are talking about preventing people from leaving to have abortions. Does the abortion crackdown trend have the potential of becoming a freedom of movement controversy?

LC: Whether or not they're broadly legal, the point of these state laws is to intimidate people who already face barriers to abortion care from seeking help. It's to create a climate of fear – literally to scare someone into thinking that if they get in a car and drive to New Mexico or Colorado, they'll have a trooper following them.

JS: SCOTUS has accepted the mifepristone case. Any predictions?

LC: At this point, they're looking at the expansion of mifepristone access, not the approval itself. As Jessica Valenti put it, "the legality of mifepristone shouldn’t be at risk, but access and availability of the medication is." But any restrictions on access make it harder for people in abortion ban states to access care, which again is the point of the antiabortion movement - to create a climate of fear and intimidation.

JS: I have a pet theory. It's that swing voters switched from lean-R to lean-D after SCOTUS struck down Roe. Is there anything to that?

LC: I have some insight into this as a veteran of abortion ban ballot measures in Colorado dating back to 2008 – and we've won every time thanks not just to Democrats but to “unaffiliateds” (the largest voting bloc here) and Republicans voting in support of keeping access.

Republican and Independent voters have always been ahead of Republican politicians on this, because it fundamentally comes down to the value of keeping government and politicians out of your private business, something most people support regardless of party ID.

And as Republican politicians are now finding out, you can absolutely have an abortion for a wanted pregnancy and being denied one for politics has horrifying and heartbreaking consequences.