After SD Part III: The Best Defense of Reproductive Freedom Is A Good Offense
The New State Logo.
Molly Saves the Day has 20 questions for those who allege that abortion is "baby killing." Ask them to most "pro-lifers," of course, and I’m sure you’ll re-discover what you should already know: the number of anti-choicers who believe (or, at least, are willing to act in ways logically consistent with) their alleged premises could fit in a walk-in closet. And, of course, even the few who take a coherent position face the problem that criminal bans on abortion are highly unpopular. And, moreover, to Republican elites the optimal policy is not so much "abortion should be illegal" as "abortion should be illegal, but no quite so illegal that my daughter wouldn’t be able to get one." (Because of the way abortion bans are actually enforced in practice, though, even an outright ban in most states can produce this outcome.)
For supporters of reproductive freedom, however, the problem is that American anti-choicers are as clever as they are illogical and unprincipled. They’ve constructed a very careful strategy of piecemeal regulations that have little impact on affluent women (but, cumulatively, seriously restrict abortion access for women who are poor, in rural areas, and/or in unstable familial relationships) and are politically palatable. And, to go along with this, they’re currently in the courts trying to make it much more difficult to challenge these regulations. If this strategy succeeds, it would allow states to construct baffling obstacle courses without paying the political price of banning abortion, and would also have the perverse result of making the grossly inequitable effects of these regulations an argument in favor of their constitutionality. But as important as this legal strategy is, it’s very difficult to explain why it matters. While it’s almost impossible to defend these policy outcomes normatively, as pure politics it’s very hard to counter, and in many cases it’s hard to make it clear to the public what’s at stake.
Which is the one potential silver lining of the appalling South Dakota law. It has the potential to blow their "reasonable regulation" cover, and make clear what will happen in many states if Roe is overturned: bans on abortion (albeit bans that inexplicably exclude women from punishments, don’t have sanctions for doctors logically consistent with the idea that abortion is "baby-killing", etc.) Publius explains:
I’d actually go a couple steps further. I would ask every single Republican candidate up for re-election in 2006: "Do you support imprisoning doctors for performing abortions following rapes, as South Dakota’s new law demands?" If they hid behind the rape exception, then you could follow up with Oliver’s question about whether doctors should be thrown in jail for performing abortions more generally.
The combination of the Alito and Roberts confirmations along with the South Dakota law is, I think, a watershed moment in the abortion wars. The South Dakota law in particular should serve as a wake-up call to the pro-choice movement that its tactics aren’t working and that it needs to make some changes in its long-term strategy. To develop Oliver’s point, if I were a consultant, I would recommend that the pro-choice movement make two major changes: (1) It should shift its emphasis from a defensive legal strategy to an offensive political strategy; (2) It should shift the debate away from abortion itself – and the abstract questions of when life begins – and focus on crime and punishment. In other words, the movement should aim to make an abstract debate more concrete by focusing on criminal sanctions and the imprisonment of doctors and women.
The importance of this insight would be hard to overstate. The South Dakota law is a political opportunity, presenting the chance to make it clear that they mean it: not about abortion being "baby-killing," of course, but about criminalizing abortion as a way of inscribing the reactionary sexual mores of the GOP base into law. But opportunities are not self-executing: pro-choicers have to make it work. And this, ultimately, is what’s so frustrating about the Saletan approach. Even before this pro-choicers already had many opportunities, starting with the fact that the national Republican Platform endorses a constitutional amendment that would make abortion first-degree murder in all 50 states. When was the last time you heard a Democratic politician mention that, even though maximizing the public’s knowledge of their opponent’s most unpopular positions would seem to be Politics 101? Instead, taking the advice of people like Saletan they accept the debate as it has been arbitrarily carved up by disingenuous pro-lifers, getting in sucked into ludicrous ginned-up non-issues like the "partial-birth" nonsense. The Republicans have been masterful about playing both ends, and keeping the debate focused on tangential side issues. The way to counteract this is not to go along with the existing discourse, but to change the terms of the debate, to make clear what Republicans want to do and put the debate in terms of keeping abortion legal, where public opinion massively favors the Democrats. The draconian (and illegal) actions of the South Dakota legislature provide an excellent frame for making this clear, but the Democrats need to start playing some offense.
[Cross-posted to L, G & M.]