Why the Republican offensive on abortion is escalating
“We are seeing this pattern because the Supreme Court’s conservative majority has signaled that it is ready to reverse Roe,” Ziegler told me in an email. “Now, we are getting a sense of what red states really want to do when Roe is gone. That is why we are seeing bans from fertilization — as in Oklahoma — and laws that focus on abortion pills, which will be crucial in determining whether bans will be effective.”
All of this is coming even as a January CNN survey conducted by SSRS found that more than two-thirds of Americans oppose the court overturning Roe v. Wade. Abortion restrictions routinely draw broader support in red states, but even in them, a 2018 state-level analysis by the nonpartisan Public Religion Research Institute shared with CNN found that in most cases, a majority of residents do not want to completely ban abortion — despite the fact that several states have passed “trigger” bans to do so if the Supreme Court allows it.
Against that backdrop, the severe abortion restrictions rapidly proliferating in red states represent a bet from the Republicans controlling them that they can satisfy the demands of their most ardent base supporters without facing any consequences among more centrist voters in their coalition who are uneasy, or outright opposed, to the new limits. Across the red states, Republicans are placing a similar wager on the broad wave of other bills they have approved in rapid-fire succession since 2020 to limit transgender rights, censor classroom discussion of race, gender and sexual orientation and ban certain books.
If that bet pays off, and red state Republicans suffer no midterm defections over this surge of socially conservative legislation — an outcome that may be the most likely possibility amid the extensive public discontent over President Joe Biden’s performance — pressure inside the party to lurch policy further to the right will only intensify, not only on abortion, but also on the broad range of cultural issues energizing conservative activists.
A rising tide of legislation
Even amid the increasing red-state focus on the issue since 2021, last week’s activity constituted a kind of crescendo. On Tuesday, Oklahoma Republican Gov. Kevin Stitt signed one of the nation’s most sweeping bans, which bars almost all abortions, denies exceptions for rape and incest and imposes felony penalties, including up to 10 years in prison, on doctors who perform or attempt to perform the procedure. On Wednesday, the Republican-controlled Kentucky state legislature overrode a veto from the state’s Democratic governor, Andy Beshear, to approve legislation that bans abortion after 15 weeks also without exceptions for rape and incest, prohibits the distribution of abortion pills through the mail and imposes so many restrictions on abortion clinics that neither of Kentucky’s two facilities is expected to continue operating in the state. Then on Thursday, Florida’s Republican Gov. Ron DeSantis signed into law that state’s 15-week abortion ban, which also contains no exceptions for rape and incest.
These hardline bills continue the clear pattern of the past two years. Elizabeth Nash, who tracks state policy for the Guttmacher Institute, a think tank supporting reproductive rights, says that since 2021, 12 Republican-controlled states have passed laws restricting or banning abortion. Of those, she says, only the new limits approved in Idaho, South Carolina and Wyoming preserve some exemptions for victims of rape and incest.
The removal of exceptions for rape and incest in the new state laws represents only one of the ways in which red states are escalating their campaign against abortion. Since 2021, seven Republican-controlled states have banned distribution of medication abortion through the mail, despite the FDA ruling. Texas, in another case that’s reached the Supreme Court, last year created a “vigilante” lawsuit system that authorizes private litigation against anyone who assists or provides an abortion (although not the woman herself) after cardiac activity can be detected, which can be as early as six weeks into pregnancy. Idaho has incorporated a similar approach into its “heartbeat” abortion ban as well.
More states may follow before this legislative season ends. Republican-controlled legislatures in Ohio and Louisiana may advance new abortion bans, with further action under discussion but less likely in Alabama, Missouri, South Carolina and Tennessee, Nash says. Separately, Missouri, Tennessee and Ohio may bar residents from obtaining medication abortion solely through the mail. Oklahoma could also supplement the ban Stitt signed last week with several additional measures, including a bill authorizing Texas-style private lawsuits (which are also under discussion, if less imminently, in Ohio and Louisiana).
Red states are also discussing ways to extend the reach of their restrictions beyond their borders. A Republican state legislator in Missouri has proposed to authorize lawsuits against people in other states who help a state resident obtain an abortion. After Citibank indicated it would pay expenses for Texas employees who traveled out of state to obtain abortions, a Republican Texas state legislator last month threatened to introduce legislation barring companies that did so from local government contracts.
This increasingly confrontational posture toward abortion in red states tracks with the GOP’s trajectory on other social issues. Republican-controlled states have also moved toward more militant positions on LGBTQ issues, not only banning transgender women and girls from school sports, but also initiating child abuse investigations against parents (Texas) and criminal penalties against medical professionals (Alabama) who provide gender-affirming treatment for transgender minors. A broad red-state push to limit how race and gender are discussed in public school classrooms has spilled over to new measures to restrict how teachers talk about sexual identity and orientation (such as the Florida legislation critics call the “don’t say gay” bill, which DeSantis recently signed into law), and proposals to make it easier to ban books they don’t approve of not only in school libraries, but also in public ones.
Democrats struggling to respond
On every front, ideas that once might have been considered on the fringe inside the GOP have moved rapidly into law — and, in most instances, inspired copy-cat proposals in other states. Democrats have struggled to respond to this offensive, both at the state and national level. In Washington, the House of Representatives has passed legislation that would codify a national right to abortion and undo many states’ moves against transgender youth, but Republican-led filibusters have blocked those proposals in the Senate (along with the House-passed bill that would override the voting restrictions many of these same red states have approved). And though state Democrats have voted almost en masse against these policies, as well as the voting restrictions, the party has been divided over how much to stress its opposition to them in the midterm elections — frustrating some party strategists in the process.
“It is critical that Democrats take this radicalization we are witnessing and make it into a kitchen table issue,” says Simon Rosenberg, president of NDN, a Democratic research and advocacy group. “That has to be part of the discourse with the American people this year in order to make this into a competitive election, because it is the single most important thing happening in our politics.”
Of all the socially conservative causes Republicans are advancing in the red states, abortion is probably the issue Democrats feel most comfortable contesting. As CNN recently reported, with the Supreme Court decision approaching, a wide array of Democratic candidates are stressing their commitment to preserving abortion rights.
“I do think they are overplaying their hand electorally, because November could be the first election we’ve had in decades when Roe is not the law of the land, and I think the backlash will be very swift and severe,” says Christina Polizzi, press secretary for the Democratic Legislative Campaign Committee.
Polls have consistently found that a solid majority of Americans oppose overturning Roe — with that resistance extending well into the Republican coalition. In the January CNN survey, not only did 69% of all adults oppose ending the constitutional right to abortion, so did 43% of Republican men and a striking 47% of Republican women, according to detailed results provided by the CNN polling team. In a follow-up question, nearly three-fifths of all adults said that if the Supreme Court did overturn Roe, they wanted their states to make their abortion laws more permissive, while only 40% wanted them more restrictive. About one-third of both Republican men and women joined the majority who preferred that state laws become more permissive.
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