The five biggest challenges the pro-life movement faces after Roe
W. James Antle III
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The pro-life movement scored its biggest victory when Roe v. Wade did not survive to its 50th anniversary, but even greater challenges still lie ahead as the fight against abortion becomes a multi-front battle.
Dobbs v. Jackson Women’s Health Organization paved the way to greater legal protection for unborn children, but does not guarantee it.
Here are the five issues abortion foes must contend with to realize the full potential of Roe’s reversal in the Dobbs case.
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State elections matter more now than ever before for the antiabortion cause
Dobbs fully restored the states’ power to regulate or even prohibit abortion. Gubernatorial and state legislative races always had some impact on abortion policy, even after Roe effectively wiped out the laws on this issue in all 50 states. States regained some powers to restrict abortion the last time Roe was seriously relitigated in Planned Parenthood v. Casey in 1992.
But now what happens in state capitols is the most important thing determining the legal status of abortion throughout the country. Previously, the highest priority was electing a president who would appoint anti-Roe justices to the Supreme Court. Former President Donald Trump’s defeat of Hillary Clinton in 2016 was the number one reason Roe fell. But now that it is gone, that same energy has to go into numerous races in all 50 states.
It is true that all states are not equally likely to curb access to abortion, so more resources will need to be devoted to red states and battleground states than deep blue areas of the country. The presidency is similarly contested on a state-by-state basis through the primary process and the Electoral College. But the sheer number of races that will require attention has increased dramatically.
Federal elections don’t lose any importance
The presidency and the composition of the Supreme Court will remain critical to pro-life prospects. The justices will still decide the constitutionality of abortion laws. The president will keep appointing justices and will have the ability to sign or veto federal abortion legislation. The executive branch will help determine the availability of abortion on federal lands and at military bases, subject to the law.
Dobbs also expands the ability of the federal government to regulate abortion. It has also enhanced the appetite for passing legislation codifying abortion rights nationally. The bill that passed the House when it was still under Democratic control would erase most state-level abortion restrictions, returning to the Roe status quo.
If Democrats had gained one additional Senate seat and retained the House, President Joe Biden had pledged to sign this bill into law on the 50th anniversary of Roe. But Republicans won the House and Democrats do not have the votes to eliminate the Senate filibuster to pass the measure. The bill failed to garner majority support in the 50-50 Senate last year.
Public opinion about abortion matters more
Roe insulated abortion policy from the voting public’s preferences. Regulations supported by a majority of voters were not permitted by the Supreme Court.
That changed somewhat in 1992, mostly in pro-lifers’ favor. After Casey, it was easier to enact laws requiring parental involvement in minors’ abortion decisions, waiting periods, bans on late-term abortions and partial-birth abortion, and strengthening abortion clinic regulations. The public favored the antiabortion position on most of those issues, with some variation based on the policy details.
Now that Roe is gone, abortion opponents can attempt to pass laws where they hold minority viewpoints. The electorate neither supports a total ban on abortion or abortion at any stage of pregnancy for any reason with taxpayer subsidies. Abortion rights supporters have had the leeway from the court to enact their least popular policies. Dobbs gives it to the antiabortion side as well.
Abortion opponents will need to win elections under circumstances where their policies can actually become enshrined in law. They will need sufficient public support to make those laws sustainable.
Based on the midterm elections, where Democrats used the abortion issue to beat expectations, pro-lifers aren’t there yet.
Support for pregnant women will need to be expanded
In states where abortion is illegal, crisis pregnancy centers will take on an even bigger role in supporting women and their children. In states where abortion remains legal, they will need to actively compete with abortion clinics as the best choice for women and their babies. They will have to up their services at a time when they are facing violence and threats.
While elected abortion foes can also expand state-sponsored social services, much of the burden for funding these centers and supporting women will need to be borne by pro-lifers themselves through private donations. In pro-choice states, they will also need to do this while fighting off attempts to regulate, defund or marginalize these centers.
All of this will need to be done without Roe as a motivator
Trump has complained that antiabortion voters did not show up in full force in the midterms because Roe was overturned. While this seems less important to the election results than some of Trump’s own activities, it is a real temptation. The amount of time, money, and effort required is now greater precisely because Roe is gone.
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Pro-lifers worked for almost half a century to overturn Roe. They succeeded.
But that was only the beginning.