This is How To End Abortion Politics as We've Known It
If Democrats stop evading the reality of the situation, they can lead
The Democratic response to the erasure of Roe v. Wade has been one of evasion, whether it’s establishment calls to donate $6 and vote in enough Democrats to pack the court; fever dreams of some package of executive actions that would be substantial enough to meet the moment; or the substance-free but certainty-abundant social media posts of the very same left-wing intellectuals and activists who spent the last decade pressuring Democrats to abandon the center on abortion which they now so desperately need. What all of these approaches evade is the response to Dobbs that Democratic politics and policy interests call for right now, but which runs counter to the impulses of activists and elected officials ensconced in liberal states with liberal abortion laws. What is needed now is legislation which provides a national framework that would contain our abortion debate, even if it would also mean codifying the nation’s long-held consensus that abortion is not a social good, even if a majority also believe it necessary to (re)establish the right to have one.
One could be forgiven for not thinking that definitive congressional action on the issue of abortion is an option, as Congress has almost entirely neglected its responsibility on the question for more than fifty years. Obviously, it was in the vacuum of congressional inaction that Roe was decided in the first place. Then, as I was recently reminded by a senior and long-time progressive advocate and Democratic aide, Democrats were unable to reach an agreement among themselves to codify Roe in the 1990s, choosing inaction over appeasing moderates with provisions like waiting periods and parental notification. Is there any pro-choice activist in the country who wouldn’t take that deal today? Activists only want to compromise when they have little leverage in the first place, and few care to advance compromise when they feel like they are on the precipice of accomplishing everything they desire.
Democrats don’t have great options right now. They can hope to use Dobbs to bring them massive majorities in the House and Senate, but who knows if or when those will come. Even if Democrats do keep the House and gain seats in the Senate, if you thought the last fifty years was toxic when it came to abortion politics, just wait until Democrats codify Roe with a party-line vote by eliminating the filibuster, only to see Republicans pass a national heartbeat bill a couple years later.
What would be healthier for our politics is for Congress to ask the extremes to accept something they don’t like, as a change from the current tack of asking the majority in the middle to choose between two extremes.
In the absence of serious proposals that seek to take into account the political interests at stake, public opinion, and the desire to not follow fifty years of debate in the Roe era with fifty years of toxic, divisive debate in the Dobbs era, I am offering the framework for consideration.
A sustainable compromise would include the following elements: a federal ban on abortion post-viability with exceptions for the life of the mother, rape and incest (the ceiling); the legalization of abortion up to a certain early-stage in a pregnancy (somewhere, perhaps, between eight-fifteen weeks, depending on the makeup of the coalition to support such a bill; the floor); the codification of the Hyde Amendment; the codification of robust conscience clause protections; a prohibition of federal laws overriding state restrictions on abortion as proposed by the WHPA; and a mandate that states ensure reasonable access to a safe abortion provider.
Democrats would need to let go of their policy ambitions of legal abortion through viability (or beyond) in every state, and they would need to let go of their cultural goal to advance abortion as not just necessary, but a social good. Republicans would need to let go of the dream of a federal amendment banning abortion, and allow abortion, up to a limit, in all fifty states (eight states currently have a total ban on abortion). Congressional Democrats and Republicans would both have to allow for movement in the joints—California would likely always allow abortion up to viability, while Alabama would only allow abortion up to the nationally-established limit. Pro-life and pro-choice medical professionals should come to an agreement, within the framework offered above, to advise Congress on how such a law could clearly and reliably avoid interfering with medical decisions regarding miscarriages or ectopic pregnancies. Such a compromise might also include regulations on Plan C or mandates for contraception access.
The goal, though, must not be to use this as a vehicle to get as much done as possible, but instead to provide a framework that makes the post-Dobbs, post-Roe landscape sustainable, objectionable to activists on both sides, but too delicate to upset.
Democrats should accept such a deal because a majority of abortions take place before even the eight-week mark, and pro-choice activists and Members of Congress from pro-choice states should choose to defend the interests, as they see them, of women in states where abortion is or will be banned. Again, a deal within this framework, or something like it, would deliver on pro-choice advocates’ stated priorities more than any other realistic proposal. Most Democrats represent states that already prohibit abortion after viability, and so with this framework they would codify abortion rights nationally while leaving their states laws virtually untouched. Every Democratic Senator should be willing to support such a framework given the current state of play, and the stakes, as they see them, in a post-Dobbs landscape.
Democrats should also recognize that while they don’t have great options right now, they do have control of The White House, the Senate and the House. If they think things look daunting now, history suggests they’ll look even more so less than a year from now. Democrats might not have the power to even force a vote guaranteeing abortion rights to any extent next year. Their window for advancing legislation that can pass might be closing. They shouldn’t let the misguided and politically unrealistic aspirations of activists dictate their legislative strategy. That has run its course, and it has led them here.
Pro-life Republicans, or at least enough of them to pass the legislation, should accept the bill because they will never have more leverage than they do now. Yes, they could pursue a national heartbeat bill. However, if a deal can be reached now to achieve and secure for the long-term pro-life policy gains that would have been unthinkable four years ago, Republicans should take it. Senators Murkowski and Collins should be able to secure the support of some of their pro-life colleagues to support such a framework. More than ten Republican Senators represent states which allow abortion up to fifteen weeks or more. Pro-life Republicans could make a late-term abortion ban permanent, forever ban federal taxpayer dollars from supporting abortion, forever protect the consciences of medical workers and others regarding abortion, and not contribute to the liberalization of abortion laws in their states one iota. For those in competitive states, they wouldn’t have to be on the hook for draconian bills in other states, and they wouldn’t have to defend votes on heartbeat bills or other sweeping national pro-life legislation that seeks to inch closer and closer to an outright abortion ban.
Critically, such a deal could place abortion in our politics where it is in the politics of most European nations—sometimes a second or third-tier issue, but never an issue around which their politics revolves. Attempts to bind the consciences of voters, forcing them to ignore all other issues, would itself be viewed as a violation of the consensus, and those who sought to revisit the consensus would find it more difficult to gain traction. Indeed, this framework has the benefit of reflecting public opinion more closely than either a total abortion ban or abortion without restriction. A new poll from Harvard/Harris has seventy-two percent of Americans and sixty percent of Democrats in support of a ban on abortion after fifteen weeks.
President Biden has referred to himself as a transitional president. For his entire time in public service, abortion had bedeviled our politics. Biden himself has poignantly described how the issue has bedeviled him, one of many reasons why the American public has so identified with him as a person. I can’t imagine he wishes to hand to the next generation a more toxic abortion politics than even he had to navigate. With this framework, Biden could show the nation a real path forward beyond abortion politics as we’ve known them. He can be the first president to sign a bill codifying abortion rights, while also being the president to move the issue off the front-burner of our national politics, allowing for the possibility of a broader Democratic coalition that is focused on the kinds of domestic, working-class issues he’s always championed. President Biden, along with Speaker Pelosi (who has similarly wrestled with the issue of abortion throughout her career), could transition our nation into a new era, so different from the one that preceded it, where abortion politics is generally settled at the national level.
Polarization completely disincentivizes such a compromise, but the needs of the moment, the stakes of the moment, might be enough to override polarization. A framework like I’ve advanced here would not settle all disagreements about abortion, but it would move these disagreements out of the center of our politics, freeing up politicians, advocates and everyday Americans to consider other issues and build new coalitions. This fight will never end, and if Congress doesn’t act, it will remain at the center of our politics for another fifty years. Some want it that way. The majority of the American people, however, do not. Congress should act to represent them.