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Abortion and the 2022 Elections

November 18, 2022

Across the ideological spectrum, there was agreement on abortion and the elections.

 “Support for abortion rights now appears to be one of the big reasons Democrats defied history and staved off deep midterm losses,” stated the New York Times. The Wall Street Journal declared that “For many voters, support for legalized abortion changed the election from a referendum on Democratic control of Washington into more of a choice between the two parties.” And according to The American Spectator, the “issue of abortion played a significant role in the underperformance of Republicans in the midterm elections.”

One month ahead of the elections, Axios noted data from several groups that follow campaign spending showed that money from Democratic groups was pouring into advertising focused on abortion rights. Republican groups were placing their bets on the economy. The Wesleyan Media Project found that in the lead-up to the voting, pro-Republican groups devoted the majority of their television issue ads to inflation, energy, and crime. Pro-Democrat groups spent more on abortion – over a third of what they committed in broadcast television and local cable ad buys – than any other issue. Groups supporting Republicans all but ignored abortion, assigning only 2% of their broadcast budgets to reproductive issues.

There is no reason to think abortion will wane as an issue before the 2024 presidential election. Does that mean Republicans are doomed to suffer with abortion on the ballot the next time voters go to the polls? In the wake of the Supreme Court’s Dobbsdecision reversing Roe v. Wade, new trenches are being dug for a protracted battle. But there are those who are hopeful the warring factions will find a way to get to some sort of middle ground.

One of them is eminent Harvard Law School professor Mary Ann Glendon. She has written extensively about abortion law, including the 1987 book “Abortion and Divorce in Western Law.” She has argued that with Roe v. Wade, the Supreme Court stole away voters’ chance to come to an accommodation on abortion, one that would have made the issue less of a partisan flashpoint. Glendon tells RealClearPolitics she expects abortion law will become less fraught: “As time passes, the abortion map of the United States will show a range of approaches reflecting the preferences of voters in each state. Probably most states will have some sort of compromise legislation, with some stricter and some more lenient.”

The view that difficult issues should be resolved democratically and not exclusively through the courts has had advocates on both sides of the ideological divide. Roe “invited no dialogue with legislators. Instead it seemed entirely to remove the ball from the legislators’ court,” the late Justice Ruth Bader Ginsburg said in a lecture at New York University School of Law in 1993 (Justice Samuel Alito cited her speech while writing for the majority in Dobbs). Roe, Ginsburg said, “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

Is the repeal of Roe likely to lead to a stable settlement of the issue anytime soon? Mary Ziegler, a professor at UC Davis Law School, doubts it. Ziegler’s most recent book is “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.” Anticipating a long stretch in which different states will have very different abortion laws, Ziegler is unconvinced that a crazy quilt of contradictory state laws is likely to satisfy the opposing sides in the abortion debate.

“If states keep coming up with extreme laws” that conflict with uncompromising laws in other states, she says there will be fresh legal battles. “States don’t usually mess with other states,” says Ziegler. How much new litigation will there be? Will states respect one another’s laws as required under the Full Faith and Credit clause in Article IV of the Constitution? Will conflicts between states lead to a legal impasse that has to be taken up by the high court all over again?

“The Supreme Court get involved in abortion again?” Ziegler says: “That would be a terrible idea.”

Pew Research reports that over 60% of “Americans say abortion should be legal in all or most cases.” This isn’t much of an issue for Democrats, Ziegler says, because the party is unified in its support of abortion. There is more dissent on the Republican side, which presents a problem likely to emerge within the party: disagreement between state lawmakers and their fellow partisans on Capitol Hill. Legislators at the state level have shown a willingness to pass uncompromising statutes. Hardline abortion bans passed at the state level could stymie efforts to present GOP congressional candidates as caring and understanding.

If Ziegler is right, abortion will vex Republicans for elections to come. But Democrats may be tempted to press their advantage beyond what the market will bear. If Democrats try to “see how far they can go” they may “forget political realities” and push an absolutist position. That would be the very “mistake that the GOP has made,” she says.

Does that portend endless, bitter conflict between Americans who insist that abortion on demand is a right and those who believe all abortion is murder? Mary Ann Glendon doesn’t think so. She suggests that the push and pull of politics allows the electorate to work out its differences rather than acting them out.

“Leaving abortion regulation up to the ordinary democratic political processes of bargaining, education, persuasion, and voting will be healthy for our democracy,” Glendon says. “It will respect the constitutional design for government; and it will leave open the possibility of reexamination from time to time.”

As fraught as elections have become, citizens exercising their franchise is the way to find some resolution. “I would guess that the issue will continue to be divisive in the U.S. because feelings on both sides run high,” Glendon told RCP. “But that’s democracy for you: Unless the Constitution provides otherwise, we must take our case on controversial issues to our fellow citizens, not to the courts.”

This article was originally published by RealClearPolitics and made available via RealClearWire.

Eric Felten is an investigative correspondent for RealClearInvestigations, reporting on government corruption. He is a former columnist for the Wall Street Journal and previously a Kennedy Fellow at Harvard University. Felten has been published in Washingtonian, People, National Geographic Traveler, The Weekly Standard, Daily Beast, National Review, Spectator USA, and Reader’s Digest.

For media inquiries, please contact media@realclear.com.

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