According to a CNN survey taken after Politico published the draft Supreme Court opinion overturning Roe v. Wade, 66 percent of Americans do not want the Court to “completely overturn” the 49-year-old decision. Likewise, 59 percent support Congress passing “a nationwide right to abortion.” And yet when asked in the same poll, “Which party’s candidate would you vote for in your Congressional district,” Republicans outpace Democrats 49 to 42 percent.
Texans show a similar divergence. Last May, Governor Greg Abbott signed a bill effectively banning abortion after just six weeks of pregnancy. This law is not popular. In a December Spectrum News/Ipsos poll, only 42 percent of Texans support the measure while 55 percent oppose it.
In June, Abbott signed another bill, which, upon Roe’s invalidation, would outlaw abortion, save for cases when pregnant women face death. It carries a maximum sentence of life imprisonment for abortion providers. In April, 54 percent of Texans rejected automatically banning all abortions once Roe is struck down, according to a survey by the Texas Politics Project at the University of Texas at Austin. Only 35 percent of Texans favored this kind of automatic ban.
The data suggests that the demise of abortion rights isn’t helping Democrats in Texas or many other places. Tim Reid of Reuters published a dispatch from suburban Arizona. After interviewing several pro-choice women who were undecided about the state’s U.S. Senate race, Reid found that “most of the women said inflation, not abortion, was the galvanizing issue for them.” Could reproductive freedom not be much of an issue for voters?
In all likelihood, the threat of lost abortion access needs to be acutely felt to be a high priority.
Texas offers lessons about what happens when freedom is taken away, at least at first. In the Lone Star State, the number of legal abortions in the final third of 2021, compared to the same period a year before, dropped by 46 percent. However, as The New York Times reported in March, the number of Texas women who still got abortions—including those who crossed state lines or broke state law by using abortion pills after six weeks—dropped by a much smaller amount, about 10 percent.
Politico reported that many Texans are ordering abortion pills through the mail, “in discreet packaging,” from the international nonprofit Aid Access: “State data shows a drop of 2,149 clinic-based abortions in September of 2021. In the same month, Aid Access received 1,831 requests for pills from Texas patients—which would account for over 85 percent of the decrease.”
Moreover, we have yet to see a dramatic example of Texas punishment. You may be aware that Texas’s effective six-week ban was cunningly written to relieve the state attorney general from having to enforce the law. Instead, individuals acting as vigilantes can sue anyone in civil court for allegedly aiding an abortion and win $10,000 in damages, and they need not pay restitution if they lose. But we haven’t seen a flood of such abortion lawsuits, because Texas’s clinics appear to be complying with the law.
After Alan Braid, a physician, wrote an op-ed in September about performing an illegal abortion, a couple of lawsuits were filed. But the leading anti-abortion group in Texas didn’t sue, telling The Wall Street Journal that it wasn’t clear Braid violated the law. And some legal skirmishing is happening between the abortion rights organizations Lilith Fund and North Texas Equal Access Fund versus the anti-abortion Thomas More Society and America First Legal Foundation, founded last year by the former Donald Trump adviser Stephen Miller.
Last year, Texas also adopted a stiffer law banning physicians from “providing an abortion-inducing drug to a pregnant woman” without following reporting requirements—which would let state authorities know if a prescription ran afoul of the six-week ban. The law also bars mail delivery of abortion pills. While violating the six-week ban on abortion is not a criminal offense and can’t lead to jail time, breaking the abortion pill law is a “state jail felony” that carries a potential two-year sentence. But so far, no doctor has been arrested under the pill law—or, if one has, it has managed to escape media attention.
One abortion case briefly attracted media attention: the arrest and incarceration of 26-year-old Lizelle Herrera because of, according to the Starr County Sheriff’s Office, “the death of an individual by self-induced abortion.” But she was quickly released because Texas law does not hold a pregnant woman who has an abortion criminally liable. Media attention promptly shifted elsewhere.
Of course, it’s horrible that Herrera spent one second in jail. It’s horrible that women who want abortions are forced to travel hundreds of miles, assuming that they have the means to do so. It’s horrible that some women are going to poorly regulated Mexican pharmacies for abortion pills. It’s horrible that Texas’s abortion pill law complicates the care of those who have miscarriages. We are getting a glimpse of what happens when reproductive freedom is lost.
But it is only a glimpse, and a glimpse may not be enough to convince most voters that Roe’s end will upend their lives. Keep in mind, almost no one of childbearing age today was alive in the pre-Roe era, so the loss of reproductive freedom may be hard to feel viscerally. After the Supreme Court leak earlier this month, a nationwide Monmouth University poll asked, “If Roe is overturned … how much do you think it will personally impact you and your family?” Only 15 percent said “a great deal,” while 53 percent said “not at all.” Among women, the numbers are not much different: 19 percent said “a great deal,” and 46 percent said “not at all.” And for respondents between 18 and 34 years of age, 21 percent said “a great deal,” and 44 percent said “not at all.” (About 85 percent of all abortions are had by women under 35, with more than half by women in their 20s.)
Wisconsin’s anti-abortion Republican Senator Ron Johnson—facing reelection with a favorable rating of just 36 percent—is trying to dampen any backlash by insisting that abortion access will remain available. He told The Wall Street Journal that he’s not sure whether Wisconsin’s dormant 19th-century abortion ban would even go into effect should Roe be overturned, and besides, even if it did, those seeking abortions could drive to Illinois. (With power in Wisconsin divided between a Democratic governor and a Republican legislature, few believe a new abortion law can be swiftly enacted to replace what is on the books.) “It might be a little messy for some people, but abortion is not going away,” Johnson said. “I just don’t think this is going to be the big political issue everybody thinks it is, because it’s not going to be that big a change.”
However, poll numbers on abortion should not be treated as static. Most people may not feel threatened now, but they could soon, if (or when) Republican officeholders implement bans with aggressive, disruptive enforcement. Consider the possibilities, such as laws against crossing state lines to obtain abortions, crackdowns on pills by mail, bans on emergency contraception or intrauterine devices, no exceptions in cases of rape, incest, or ectopic pregnancies, plus criminal penalties for those who get or perform abortions. Last Thursday, the Louisiana house turned back a proposed bill that would have made women who receive abortions guilty of homicide, but passed a substitute bill establishing a maximum prison sentence for abortion providers of 10 years for early abortions, and 15 years for those performed after 15 weeks.
A wave of deaths from illegal abortions isn’t inconceivable. The Guttmacher Institute, in a 2017 report, noted that worldwide, “some 22,800–31,000 lives are unnecessarily lost each year” from abortion-related complications, with death rates far higher in “developing regions” because “countries that legally restrict abortion are concentrated in the developing world.” The case fatality rate in Africa was 141 per 100,000, whereas in America, it was less than 1 per 100,000. (In the year before Roe was decided, America suffered 39 deaths from illegal abortions.)
One devastating death transformed abortion rights in Ireland. The country banned abortion by referendum in 1983. In 2012, as reported by The New York Times, a 31-year-old dentist named Savita Halappanavar died from “an infection she contracted after she was denied an abortion during a miscarriage,” and “for many young Irish women, hers was the first tangible story of how the Eighth Amendment, which was introduced in 1983, could affect them.” Six years later, in another referendum, Ireland repealed the ban.
America’s goal should be to galvanize voters before someone dies from an illegal abortion. Any morally acceptable post-Roe strategy has to include support for organizations that help people access abortions no matter where they live.
In 2012, Democrats—with unwitting Republican help—showed that it could galvanize voters to protect reproductive freedom. That year, Democrats said Republicans were waging a “war on women.” The Republican presidential nominee Mitt Romney fought the Obama administration rule requiring health insurers to cover contraception. Virginia Republicans were pushing a bill requiring women seeking abortions to undergo a transvaginal ultrasound. (It passed after Republicans changed the text to allow abdominal ultrasounds.) Missouri’s anti-abortion U.S. Senate nominee Todd Akin, a Republican, defended his opposition to rape and incest exceptions by saying, “If it is a legitimate rape, the female body has ways to try and shut that whole thing down.” Akin’s counterpart in Indiana, U.S. Senate candidate Richard Mourdock, also a Republican, had his own defense of banning abortion in the case of rape: “I think even when life begins in that horrible situation of rape, that’s something God intended to happen.”
Women voters responded on Election Day. Unlike John McCain, Mitt Romney was able to best Barack Obama among men. But he only won 44 percent of the female vote, just one point better than McCain. The Democratic senator from Missouri, Claire McCaskill, crushed Akin, winning men by eight points and women by 22 points.
The clearest indication of how an extreme comment about abortion can doom Republicans was in Indiana, which Obama lost by 10 points in 2012. Mourdock was in a tight race with incumbent Democrat Joe Donnelly through most of the fall, a little ahead or a little behind, depending on the poll. Then immediately after Mourdock made his jaw-dropping comment about rape during a late October debate, the polls whipsawed in Donnelly’s favor. The Democrat won by six points. Exit polls showed that the two tied with male voters, but Donnelly lapped Mourdock by 12 percent with women.
No one died because of a Republican law in 2012. But the threat of lost freedom—the freedom for women to live the lives of their choosing—was deeply felt, as was the condescending, antediluvian view of women that combined bad biology with bad biblical interpretations. When that happens, watch out.