South Carolina last month became the last state to pass a so-called heartbeat ban, criminalizing abortion after fetal heart activity or a heartbeat is detected, usually between six and eight weeks pregnant. A federal court promptly blocked the law from taking effect, underscoring the concern of some opponents of abortion that the approach was too extreme and counterproductive.
Until several years ago, these prohibitions on early abortion reached many, even some state legislators, in the same way. But in 2019, state legislatures passed a wave of bills on fetal heartbeat. About a dozen states, including South Carolina, tried to put that law in their books, but were blocked by the courts. At the moment, the jurisprudence of the Supreme Federal Court removes any prohibition before viability, at which point survival is possible outside the womb.
This 2019 push by abortion absolutists, two years in Trump’s presidency, was also a push against a more incremental approach that had dominated the anti-abortion effort. The National Committee for the Right to Life, a movement giant, warned that the backfire would backfire on the Supreme Court. Many conservatives thought it went too far.
No longer. Because South Carolina law made exceptions for pregnancies resulting from rape and incest, relatively moderate Republican lawmakers voted in favor of the ban. The National Committee on the Right to Life appears to be taking a complete turn and is now providing information on heartbeat bills.
Laws like that of South Carolina are the new norm on abortion and shed some light on the direction the anti-abortion movement is taking after Donald Trump.
Perhaps more than any recent high-ranking official, Trump has become synonymous with the struggle to criminalize abortion: he was the first acting president to participate in the March for Life and appointed three Supreme Court justices who seemed prepared 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 Trump’s rise to the White House, opponents of abortion were divided over how to embrace the new president. This debate has intensified since its departure.
Like the Republican Party, the anti-abortion movement has its own establishment. Groups like National Right to Life, Susan B. Anthony List and Americans United for Life are well-oiled machines, with ample budgets, close ties to legislators and sophisticated strategies.
For decades, the leaders of these organizations have played a long game: writing laws that restrict access to abortion in ways that they hope will not conflict with the Supreme Court, and then helping the red states to defend them. While it is true that some Supreme Court judges, including Samuel Alito and Clarence Thomas, appear ready to take Roe down tomorrow, even the most seasoned opponents of abortion could not be sure about the rest of the court.
Perhaps Brett Kavanaugh or Amy Coney Barrett, like Chief Justice John Roberts, were concerned with undermining the institutional legitimacy of the court by reversing Roe too quickly (or without sufficient explanation). The movement’s lawyers sought bills that would limit access to abortion without forcing the conservative majority of the court out of their 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 who lead the pulsating campaign – made an offer for power. They saw in Mr. Trump the possibility of achieving what everyone in the anti-abortion movement wants: a national ban on abortion without exception. The key, as they guessed Trump’s approach to politics, was not to court the majority, but to energize the base.
With an increasingly polarized electorate and disorderly districts, red state legislators were happy to favor anti-abortion absolutists, regardless of whether the majority of the state’s voters agreed.
South Carolina offers a vision of where the anti-abortion movement is heading. Until now, those who sought to cause Roe’s death by a thousand cuts advocated incremental limits to the procedure, while absolutists refused to make concessions. Now, it seems that the anti-abortion system has lost control.
Research suggests that Americans may not be comfortable with abortion after the first trimester. Most support some restrictions on the procedure, but a large majority oppose the criminalization of abortion, especially in early pregnancy. Like their allies in the South Carolina legislature, however, many anti-abortion leaders don’t seem to care. What counts as compromise for them is an exception for rape and incest that requires abortion providers to provide the victim’s contact information to a sheriff within 24 hours.
That’s because the era of strategies for adapting to public opinion – or the Supreme Court’s most likely response – may be coming to an end. There may still be an established 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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