Advantages of Federal Legislation on Abortion
I’ve seen a fair amount of discussion about to what extent the Democratic Party should push to pass federal legislation protecting a right to abortion and a small amount discussing how much people should be concerned about a prospective future Republican majority passing a federal law restricting access to abortion. In particular, I’ve seen some people arguing that the idea that Republicans would pass a federal law prohibiting some or most abortions is overblown; that a federal law protecting abortion rights would be struck down by the Supreme Court (and thus isn’t worth prioritizing); and that a federal law protecting abortion rights would require breaking the filibuster and that that would be a mistake. This essay argues that all of those points are wrong — that we should take very seriously the possibility that a future Republican Congress would pass a federal law prohibiting some or most abortions, that while a federal law protecting abortion rights might be invalidated by the Supreme Court but would still be worth passing, and that breaking the filibuster to pass federal protections of reproductive rights would be a good thing. In addition, while distasteful, the Democratic majority in the Senate should be willing to accept compromise measures that provide limited protections of abortion rights in the most politically popular contexts if they cannot pass a wider protection, and they should use narrower legislation to force “pro-choice” Republicans to back their statements with actions.
Throughout this essay, I write from the perspective of a pro-choice Democrat — I’m not going to spend time attempting to make a case for either supporting pro-choice policies or wanting things that strengthen the Democratic Party’s political situation. I’m going to break this up into a couple of parts. I’ll start with why a future Republican Congress would likely pass federal anti-abortion legislation.
A Future Republican Congress Would Likely Pass Federal Anti-Abortion Legislation
Despite the strong national support for most or all abortions being legal, a future Republican Congress would be likely to pass federal anti-abortion legislation. Three main reasons support this conclusion. First, Republicans in Congress say that they want to pass laws outlawing many abortions, and they have in fact previously acted on legislation that would prohibit all abortions after 20 weeks, with the legislation passing the House and getting more than 50 votes (but not enough for cloture) in the Senate. Many Republicans in Congress have a deep and sincere anti-abortion position, even if it would be politically disadvantageous. Second, the political structure of the United States allows minoritarian views to control Congress with some regularity and has a strong bias towards conservative and Republican positions. Third, in an era of common right-wing primary challenges, Republican politicians have strong incentives to take positions that are more appealing to activists in their own party even if they are unpopular with the general electorate.
The Republican Party has been unambiguous about its anti-abortion position. It was part of the national platform (when the Republican Party still had a formal platform); many Republican officeholders, including many senators and representatives, are explicitly anti-abortion; and states with Republican trifectas have frequently passed stringent anti-abortion legislation, even when the legislation goes far beyond what the median voter in the state would support. This really falls into the category of “when someone tells you who they are, believe them.” Out of the 50 Republican Senators, 47 self-describe as pro-life. Furthermore, even while Roe was in force, when Republicans last controlled Congress, a majority of Congress voted to adopt a bill that would prohibit all abortions after 20 weeks. While the motion for cloture failed, 48 Republican Senators and 3 Democratic Senators (Sen. Casey of PA, Sen. Manchin of W.Va., and then-Sen Donnely) voted in favor. Among Republicans, only Sen. Collins (ME) and Sen. Murkowski (Alaska) voted against. As the Republican Party in Congress continues to move rightwards, it is likely both that a similar bill could pass in a future Republican-controlled Congress and that a six-week or even a total ban might pass as well.
Many of the Republicans who voted in favor of that bill represent staunchly pro-choice states — for example, in Alaska more than 60 percent of voters say that abortion should be legal in most or all cases, but Sen. Sullivan still voted in favor. Similarly, many states that are Republican controlled have adopted stringent anti-abortion laws even though they are somewhat between a toss-up and majority pro-choice. For example, Ohio has passed a six-week ban, with approximately even numbers of pro-choice and anti-abortion voters, and Oklahoma has passed an outright ban with similar numbers. Many Republican politicians are firmly committed to banning or otherwise legally restricting abortion, even if their constituents disagree. If a future Congress has a substantial Republican majority in both houses, they will pass laws limiting abortion — even if they have to break the filibuster to do it.
Furthermore, the political system is stacked in favor of the Republican Party. This is most obvious in the Senate, where many very low population states reliably elect Republican Senators. District lines also heavily increase the number of Republicans in the House. Some analyses suggest that the Republican Party could capture a federal trifecta — electing the President and majorities in both houses — even if they lose nation-wide by 2% in 2024. We’ve already seen the Electoral College result in two Republican presidential victories despite losing the popular vote in the last quarter century.
The House maps tend to systematically advantage Republicans for three reasons. First, Democrats are in general more densely concentrated than Republicans. The most Democratic areas — typically major cities — are much more heavily Democratic than the most Republican areas. That means that drawing district lines that create compact, naturally shaped districts tends to produce some extremely heavily Democratic districts, some heavily Democratic districts, some competitive districts, and some heavily Republican districts — but no Republican districts that are as heavily Republican as the most Democratic districts. That creates a “natural” pro-Republican bias in single-member districting, which federal law requires for Congressional elections.
Second, Democratic states are more likely to pass “good government” reforms like independent redistricting commissions and restrictions on partisan gerrymandering. A state like California uses a redistricting commission, while a state like Texas draws the districts by an act of a legislature. That means that Republican gerrymanders are in general more common than Democratic gerrymanders.
Finally, the courts have a Republican bias in handling redistricting cases. That’s true both at the federal level, where the Supreme Court (with a 6–3 Republican majority) has taken several actions this cycle that advantaged the Republican Party (as well as rejecting any limits on partisan gerrymandering that might restrain state line drawing), and at the state level as well. Several states, both Republican controlled and Democratic controlled, have state constitutional provisions requiring partisan fairness in redistricting. But the Democratic states, like New York, are more likely to have state courts that are willing to enforce those provisions than the Republican states, like Ohio. There has been a continuous trend since at least the 1980s in which the Republican Party has very aggressively attempted to use election law to gain political power, even if they can’t muster a majority at the ballot box. They continue to have success, which means that Republican majorities — and larger majorities — in Congress are more likely than actual popular support.
The last reason to expect that a Republican Congress would pass anti-abortion legislation — perhaps extremely restrictive anti-abortion legislation — is because of the political incentives of the individual legislators. In order to remain in Congress, each legislator must win two elections: a primary and a general election. In most states, the primary election is a party primary, where the voters of each party determine their party’s nominees. Even in states with open primaries, in which voters can vote in whichever primary they prefer, most voters vote in the primary of the party they support. In the modern era, unlike in previous time periods, there is no shortage of conservative Republican challengers for Republican incumbents who are perceived as too far left. Even major figures in the Republican Party have been defeated by conservative challengers in primary fights.
Fending off or winning a Republican primary is thus absolutely essential for any Republican officeholder. And within the Republican primary electorate, the voter base is overwhelmingly anti-abortion. Furthermore, there’s a long history of political organization and activism by anti-abortion groups. A Republican politician in most states takes a very large risk by not taking a firm anti-abortion position. There are exceptions — in New England, and to a lesser degree the Northeast generally, some pro-choice Republicans continue to win primaries. At this point, however, vanishingly few Republicans in Congress represent New England or most other heavily pro-choice areas.
Of course, a self-interested Republican politician would need to weigh that against the effects on the general election. However, that will frequently carry less weight. First, a large number of districts (and states, in the case of the Senate) are either uncompetitive or only marginally competitive. In those contexts, the primary is either the only election that matters or is much more important than the general election. A Republican in a marginally competitive Republican district will rationally take a hit in the general election by supporting anti-abortion legislation rather than risk losing a primary. Second, with a very active, heavily organized anti-abortion activist constituency within the Republican Party, even Republicans in competitive districts face a choice between both risking losing the primary and alienating a core constituency that they need in the general election by taking a pro-choice position or securing needed political support in both elections by taking an anti-abortion position. Except in very competitive districts or areas that are much more heavily pro-choice than average, those realities strongly incentivize Republicans to vote for anti-abortion legislation.