South Carolina last month became the latest state to pass a so-called heartbeat ban, criminalizing abortion after fetal cardiac activity or a heartbeat is detected, typically between six and eight weeks into a pregnancy. A federal court promptly blocked the law from taking effect, underscoring the concerns of some abortion opponents that the approach was too extreme and would be counterproductive.
Until several years ago, these early abortion bans struck many, even some red state lawmakers, the same way. But in 2019, state legislatures passed a wave of fetal heartbeat bills. About a dozen states, including South Carolina, have sought to put such a law on their books but have been blocked by the courts. At the moment, the Supreme Court’s case law rules out any ban before viability, the point at which survival is possible outside the womb.
That 2019 push by abortion absolutists, two years into the Trump presidency, was also a push against a more incremental approach that had dominated the anti-abortion effort. The National Right to Life Committee, a giant in the movement, had warned the heartbeat campaign would backfire at the Supreme Court. Many conservatives thought it went too far.
Not anymore. Because the South Carolina law made exceptions for pregnancies resulting from rape and incest, Republican lawmakers who are relatively moderate voted for the ban. The National Right to Life Committee seems to be turning full circle and now provides information about heartbeat bills.
Laws like South Carolina’s are the new normal on abortion, and they shed some light on the direction the anti-abortion movement is headed in the wake of Donald Trump.
Perhaps more than any recent major officeholder, Mr. Trump became synonymous with the fight to criminalize abortion: He was the first sitting president to attend the March for Life, and he nominated three Supreme Court justices who seemed primed to reverse Roe v. Wade. Some prominent figures in the anti-abortion movement, including Janet Porter, the architect of the heartbeat campaign, saw Mr. Trump as a savior. With Mr. Trump’s rise into the White House, abortion foes were divided over how tightly to embrace the new president. That debate has intensified since his exit.
Like the Republican Party, the anti-abortion movement has its own establishment. Groups like National Right to Life, the Susan B. Anthony List and Americans United for Life are well-oiled machines, with ample budgets, close ties to lawmakers and sophisticated strategies.
For decades, leaders of those organizations have played a long game: writing laws that narrow access to abortion in ways they hope will not run afoul of the Supreme Court, then helping red states defend them. While it’s true that some Supreme Court justices, including Samuel Alito and Clarence Thomas, seem ready to overturn Roe tomorrow, even the most experienced abortion opponents could not be sure about the rest of the court.
Perhaps Brett Kavanaugh or Amy Coney Barrett, like Chief Justice John Roberts, worried about damaging the court’s institutional legitimacy by reversing Roe too quickly (or without enough of an explanation). Movement lawyers looked for bills that would limit access to abortion without forcing the court’s conservative majority out of its comfort zone.
Mr. Trump not only undermined the Republican establishment, he also weakened the conventional anti-abortion hierarchy. A more absolutist wing of the movement — those leading the heartbeat campaign — made a bid for power. They saw in Mr. Trump the possibility of achieving what everyone in the anti-abortion movement wants: a no-exception, nationwide abortion ban. The key, as they divined from Mr. Trump’s approach to politics, was not courting the majority but energizing the base.
With an increasingly polarized electorate and gerrymandered districts, red state lawmakers were happy to indulge anti-abortion absolutists, regardless of whether a majority of the state’s voters agreed.
South Carolina offers a look at where anti-abortion movement is headed. Until now, those seeking to deal Roe a death by a thousand cuts championed incremental limits on the procedure, while absolutists refused to compromise. Now, it seems the anti-abortion establishment has lost control.
Polls suggest that Americans may not be comfortable with abortions after the first trimester. Most support some restrictions on the procedure, yet large majorities oppose criminalizing abortion, especially early in pregnancy. Like their allies in the South Carolina legislature, however, many anti-abortion leaders don’t seem to care. What counts as compromise to them is an exception for rape and incest that requires abortion providers to give a victim’s contact information to a sheriff within 24 hours.
That’s because the era of tailoring strategies to public opinion — or to the most likely response of the Supreme Court — may be coming to an end. There may still be an establishment wing of the anti-abortion movement in the post-Trump era, but what passes for a moderate approach has changed irrevocably.
Mary Ziegler is a professor of law at Florida State University and the author of “Abortion and the Law in America: Roe v. Wade to the Present.”
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