For the Republican Party, the political costs of judicial victory continue to multiply.
The Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization has pushed U.S. public opinion on abortion sharply leftward. After the ruling last year, “pro-choice” identification in the U.S. surged to its highest level in a quarter-century, with pro-choice voters outnumbering “pro-life” ones by a 55 to 39 percent margin. The percentage of Americans who support banning abortion in “all cases,” meanwhile, has fallen roughly in half over the past decade, thanks largely to a precipitous decline in support in the Dobbs decision’s wake.
Elections held between the Supreme Court’s ruling and today are consistent with such poll results. In last November’s midterm elections, the pro-choice movement dominated state-level ballot referenda, defeating abortion restrictions in deep-red Kentucky, Montana, and Kansas, while strengthening reproductive rights in a variety of blue states. At the same time, Democrats mounted a historically strong showing for an in-power party in a midterm election, even as Joe Biden’s approval rating was historically low. There is good reason to believe that a popular backlash to Dobbs was in no small part responsible for this result: When an NBC News exit poll asked voters to name the issue that mattered most to their decision, “abortion” came in second, narrowly behind inflation.
Just last week, a Democratic candidate won a hotly contested race for a seat on Wisconsin’s state Supreme Court by an 11-point margin, largely on the strength of her support for abortion rights.
If Dobbs rendered the general public more supportive of abortion rights, however, it also made the pro-life movement more fanatically opposed to them.
Having secured the power to tightly restrict or ban surgical abortion in Republican-dominated states, pro-lifers have been able to shift their focus to inhibiting the provision of abortion in blue states, and choking off access to pregnancy-terminating pharmaceuticals. Unfortunately for the GOP, these endeavors are even more politically toxic than the crusade against Roe that had heretofore occupied the movement’s energies.
With surgical abortion outlawed or tightly restricted in much of the United States, supporters of reproductive autonomy have sought to expand access to medicinal abortifacients. Under Biden, the Food and Drug Administration has moved to make the abortion drugs mifepristone and misoprostol easier to access at pharmacies. Organizations like Aid Access, meanwhile, work to mail-deliver such pills to people in states where abortion is outlawed.
Even before Dobbs, medication abortion had become the most common method of terminating a pregnancy. Mifepristone is generally effective only within the first 10 to 12 weeks of a pregnancy, but the vast majority of abortions happen within that time frame. It is also, of course, much more difficult for state governments to systematically prevent women from securing abortion pills through the mail than it is to block them from receiving surgical abortions at a certified clinic. The pro-life movement already sought to ban mifepristone before Dobbs came down. But since that decision, restricting access to the drug has become one of its core objectives.
Last Friday, a Trump-appointed district court judge in Texas gave that ambition the force of law. Judge Matthew Kacsmaryk, an outspoken opponent of abortion, ruled that the Food and Drug Administration had abused its authority in approving mifepristone 23 years ago. Specifically, Kacsmaryk argued that the FDA had approved the drug through a process that is exclusively reserved for treatments of “illnesses” and “pregnancy is not an illness.” As Vox’s Rachel Cohen explains, this reasoning is profoundly dubious (the relevant regulations use the words “illness” and medical “condition” interchangeably, and pregnancy is unambiguously a medical condition).
One does not need to be a progressive to find Kacsmaryk’s ruling faulty. Former clerk to Antonin Scalia, Adam Unikowsky, provides a thorough refutation of its reasoning. At one point, Kacsmaryk writes that “studies show eighty-three percent of women report that chemical abortion “changed” them — and seventy-seven percent of those women reported a negative change.” Unikowsky’s contextualization of that claim illustrates the quality of the argumentation we’re working with:
What support does the court cite for this proposition? Why, it’s the study of the 98 54 anonymous blog posts on the pro-life website.
Wait a second. The website is called “Abortion Changes You.” The URL is abortionchangesyou.com. So yes, Judge Kacsmaryk really is quoting the statistic that “eighty-three percent of women report that chemical abortion ‘changed’ them,” without mentioning that the entire sample consists of anonymous bloggers on a website called “Abortion Changes You”!!!! This is roughly like reporting a statistic that “83% of people are fans of Judge Kacsmaryk” without mentioning that the entire sample consisted of posters on JudgeKacsmarykFanClub.com.
The Biden administration appealed the ruling, and for now, access to mifepristone remains unchanged. But the case is likely to make it to the Supreme Court in the near future. The propriety of Kacsmaryk’s decision — and of efforts to restrict mifepristone more broadly — is therefore almost certain to be an issue in the impending Republican presidential primary.
Which seems like bad news for the GOP. The pro-life’s movement ambitions have never been popular. Only about 35 percent of Americans supported the overturning of Roe v. Wade last year in Gallup’s polling. But banning access to abortion pills polls even worse.
In March, a Reuters survey asked voters whether they would support a federal court cutting off access to mifepristone, only 27 percent said yes, while 70 percent said no. Earlier this year, the same poll found that Americans support keeping medication abortion legal throughout the U.S. by a 65 to 21 percent margin. Meanwhile, a Public Religion Research Institute poll in February found Americans opposing a ban on the receipt of abortion pills through the mail by a 72 to 26 percent margin. When asked specifically about a ban on women receiving prescriptions for mifepristone from out-of-state providers in 2022, 76 percent of respondents voiced opposition in a Marquette University Law School survey.
The popularity of allowing access to medication abortion is not hard to understand. Since the pills lose efficacy during the advanced stages of a pregnancy, they do not enable the most controversial category of abortions. At the same time, the medicinal termination of a pregnancy is less invasive — and thus harder to sensationalize — than surgical abortion.
Perhaps for this reason, national Republicans have been oddly quiet about Kacsmaryk’s ruling, largely declining to defend the decision against Democratic attacks. One congressional Republican, Nancy Mace, actually encouraged the FDA to ignore the ruling.
While silence or heterodoxy might be viable stances for rank-and-file D.C. Republicans, they are almost certainly unfit for the party’s 2024 hopefuls. Pro-life voters and organizations command a substantial share of the GOP primary electorate. If the Republican nomination contest is competitive, then contenders will face enormous pressure to align themselves with the party’s pro-life vanguard.
Already, Ron DeSantis is getting right with the movement. Currently, Florida prohibits abortion after the first 15 weeks of a pregnancy. But earlier this month, the state’s Senate passed a bill that would cut the period of legality down to six weeks. Since Florida also requires two separate doctor’s visits before one can legally access an abortion, and wait times for such appointments can be lengthy, the new restriction would function as a de-facto blanket ban in a high percentage of cases. DeSantis has signaled that he will sign the law, in defiance of the will of Floridians, a supermajority of whom believe that abortion should be legal in “all or most cases,” according to a 2022 poll from Florida Atlantic University.
As DeSantis and Donald Trump fight for the allegiance of the party’s most powerful interest groups, it is all but certain that they will be compelled to champion the pro-life movement’s crusade against mifepristone. That means that the next Republican administration is likely to be the most hostile to reproductive autonomy yet. But it also makes the odds of such an administration taking power in 2025 a bit lower than they otherwise would be.
