Some Lessons and Questions After the Kansas Abortion Referendum

1. Since the Roe v. Wade decision, the typical American's position has been "abortion should be legally permitted for some reasons but not others." This remains true even in many conservative-leaning states, like Kansas, where a majority of elected representatives are pro-life.

2. Neither party fully represents this view, but the Dobbs decision has abruptly shifted the terms of political debate from whether abortions should be made modestly harder to get (a somewhat popular position) to whether they should be banned almost entirely (much less popular). This puts Republicans in a riskier position than they were in before Dobbs.

3. Republicans could partially mitigate this risk by moderating their abortion positions. But the trend within the party has instead moved toward greater ideological purity. Not only are there fewer pro-choice Republican candidates than there used to be, but a growing number of pro-life Republicans now oppose carving out exceptions to legal prohibition (e.g. to protect the woman's health) that were once considered standard doctrine within the party.

4. The abortion issue will almost certainly work to the net advantage of Democratic candidates this fall compared to an alternative timeline in which the Dobbs ruling did not occur. Dobbs forces Republicans to defend a less popular position than before, and it also provides an extra motivator for Democrats to turn out in a midterm election when they otherwise might have felt some ambivalence. How much of an advantage, however, is unclear; odds are still against it having a transformative effect on the overall outcome.

5. The overturning of Roe also makes abortion a much bigger issue in state and local politics than it ever was before. We will now start to find out what the effects of this change will be. They, too, are difficult to predict with confidence.

6. By increasing the electoral salience of abortion, an issue on which higher levels of education are associated with more liberal views, Dobbs will probably work to further increase the growing "diploma divide" separating Dem-trending college graduates from GOP-trending non-college whites. The best-educated county in Kansas is Johnson County (suburban Kansas City), where 56 percent of adults hold at least a bachelor's degree. Johnson County voted for George W. Bush in 2004 by 23 points, for John McCain in 2008 by 9 points, and for Mitt Romney in 2012 by 17 points, but was carried by Joe Biden in 2020 with an 8-point margin over Donald Trump. It voted against the pro-life referendum on Tuesday by a margin of 68 percent to 32 percent.

7. After the unusual national focus on politics during the Trump years, it would be reasonable to expect a bit of a collective withdrawal—a "vibe shift," perhaps—as Americans adjusted to the less aggressively newsworthy Biden presidency by spending more of their time and attention on other matters. But the remarkably high turnout rate for the Kansas referendum (held at a normally sleepy time of year for politics) raises the possibility that mass political engagement will remain at elevated levels despite Trump's departure from office. It's another thing to keep an eye on as we head into November.

A Backlash to Dobbs Depends on How Much It Affects the Middle Class

In the Atlantic on Monday, David Frum argued that the rise and fall of the Prohibition movement provides a useful historical parallel to the likely trajectory of abortion politics in the United States a century later. Prohibition sentiment grew steadily for decades after the Civil War, culminating in the nationwide banning of alcohol sales in 1919 via constitutional amendment and congressional legislation. Once imposed, however, the policy proved sufficiently unpopular that Prohibition was not only repealed within 14 years via a second constitutional amendment, but the entire national debate over the legality of alcohol was also permanently resolved. According to Frum, last week's Supreme Court decision in Dobbs v. Jackson Women's Health could well play an analogous role to the enactment of the Volstead Act: an apparent breakthrough victory for restrictionists that will turn out to presage a more enduring retreat.

This seems unlikely. Abortion and alcohol are sufficiently different—as are the 1920s and 2020s, for that matter—that the comparison feels imperfect in many respects. Yet Frum makes a perceptive observation that is crucial for anticipating how much of a backlash the banning of abortion is likely to provoke, even if the end result is not the fading conflict and stable compromise he envisions. As the piece explains, a powerful source of mobilized opposition to Prohibition came not merely from the immigrants and laborers whose reputation for intemperance (and resulting social disorder) had been the principal justification for its initial imposition, but also from influential middle-class metropolitans, accustomed to living mostly as they pleased, who became annoyed by the newfound restrictions on their own autonomy once the policy swung into place.

Now that a legal ban on abortion is moving abruptly from hypothetical objective to practical reality in much of Red America, the question of how it will be implemented becomes newly salient. The younger and lower-income women who are the primary population of abortion seekers, but who are not especially politically mobilized, will inevitably be the most directly affected by the Dobbs decision. But the stricter the enforcement regime, the more its effects will climb up the ladder of age and social status to reach citizens with greater political power and firmer standing expectations of deference from the world around them.

Will married thirty-something women of the bourgeoisie be left with permanent physical damage as a result of medical complications that could have been avoided with access to abortion procedures? Will their miscarriages be subjected to criminal investigation? Will they be denied fertility treatments, such as in-vitro fertilization, that involve the destruction of embryos? Will they be sent to prison for procuring illicit mifepristone pills, or face lawsuits for driving their daughters to clinics across state lines? The more the answer to these questions is yes, the more that dissatisfaction is likely to build across these women's well-connected social networks and provide fodder for news media stories and campaign commercials that portray them as victims of injustice.

Frum expects red-state officials to implement uniformly aggressive enforcement measures, which leaves him relatively confident in predicting a powerful backlash that will steadily undermine the strength of the pro-life movement. But our legal system gives substantial discretion to individual officials in charging and sentencing defendants. It's quite possible that abortion prohibitions on the books will be most strictly enforced among populations with the least political power. When combined with the fact that (unlike the Prohibition case) the regions of the country where opposition to restriction is the highest are, at least for now, free from being directly subjected to the same legal constraints, such selective implementation might keep popular opposition from becoming sufficiently strong to disrupt the close balance of electoral power between the two sides that has already endured for the past 30 years.

Moreover, many of the authorities now in position to enforce the new restrictions are not themselves conservatives. The local district attorneys and judges elected in pro-choice communities, such as most large metropolitan centers, will face strong personal incentives to use their discretion to minimally enforce the law, especially against politically sympathetic subgroups. Over time, red-state legislatures may respond to this shirking by transferring enforcement responsibilities from local to state-level officials elected by majority-Republican constituencies. But the questions of who will get punished how for what are, at this stage, unresolved and unclear, with a palpable tension arising between the substance and the politics of the abortion issue: strict enforcement of the bans would work to the electoral advantage of the pro-choice movement while lax enforcement would be relatively favorable to the political interests of the pro-life cause.

Until we have a better sense of how the post-Dobbs world will actually operate in practice, forecasting the larger consequences of the decision remains very difficult. But history can be a reliable guide in one respect. The amount of political risk incurred by proponents of a new policy often reflects how much the highly efficacious members of the American upper middle class view the change as disrupting the lifestyle of people like themselves.

Is Marco Rubio Another Todd Akin?

Today's New York Times contains an article reporting that Right to Rise, a super PAC supporting Jeb Bush's presidential candidacy, is developing a plan to launch a wave of attacks on Marco Rubio, an ex-political ally of Bush's from Florida who is now pulling ahead of Bush in the 2016 Republican nomination race. It's hard to conclude from the evidence presented that Bush's supporters have built a strong case against Rubio, whom—as the piece documents—Bush treated as a prize protégé for years before their presidential ambitions began to clash. Many of the complaints against Rubio represent mere personal pique, smacking of a who-does-he-think-he-is attitude that simply assumes that the younger man is bound by a type of filial duty to defer to his former political mentor. But even if Jeb Bush views the presidency, or at least the Republican nomination, as automatically his by right, there is little reason for such an assumption to be respected by any other Republican.

One element of the article that has received particular attention today is the detail that Right to Rise has produced what the Times calls a "provocative video" arguing that Rubio's "hard-line stand against abortion" renders him unelectable if nominated. At first glance, this seems like another bumbling political mistake from a flailing presidential campaign. Do Jeb Bush's allies really expect to win the Republican nomination by openly running to Rubio's, or anyone else's, political left on abortion? The tradeoff between ideological purity and real-world electability that many Democrats perceive is not equally accepted in the Republican Party, except among a small group of pragmatic-minded political consultants and donors—if anything, many conservatives view the Reagan presidency as proof that unswerving devotion to principle is electorally advantageous—and there is no obvious way for Bush or Bush-aligned groups to raise the issue without reinforcing the existing suspicions of many Republican activists that he is a bit of an ideological squish.

In its own awkward manner, however, the Bush crew has hit on an important question worthy of careful consideration by Republicans. Traditionally, most otherwise "pro-life" Republican candidates (including the last five presidential nominees) have recognized exceptions to a proposed ban on abortions for circumstances in which the pregnancy occurred as a result of rape or incest (and, in some cases, if the health of the woman were to be at permanent risk). Rubio, however, does not support these exceptions.

Rubio's position is a potential political liability in two respects. First, the rape-and-incest exceptions are popular among the public, even among citizens who identify as pro-life, and opposing them may thus place a candidate at a disadvantage in a general election. Secondly, two Republican Senate candidates were defeated in 2012 in normally Republican-leaning states after mounting poor rhetorical defenses of their own no-exceptions abortion views. Todd Akin of Missouri gained national attention for telling an interviewer that “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something: I think there should be some punishment, but the punishment ought to be of the rapist, and not attacking the child.” Soon afterward, Richard Mourdock of Indiana stated during a televised debate that "I came to realize life is [a] gift from God, and I think even when life begins in that horrible situation of rape, that it is something that God intended to happen.” After the election, many strategically-minded Republicans pleaded with their own party's politicians to stop talking about rape lest they inflict further political damage.

Rubio is a much more canny and fluid candidate than either Akin or Mourdock, and he may well retain an ability to deflect criticisms of his position without succumbing to the clumsy arguments that cost his party two Senate seats in red states three years ago. There is no doubt, however, that a Rubio nomination will provoke the Democratic opposition into visibly and repeatedly attacking what it will view as a significant political vulnerability. Rubio is currently the trendy pick to be the next Republican nominee for the presidency, and Republicans should be aware before the process is complete that choosing him effectively signs them up for a 2016 election in which a major topic of debate will be the permissibility of abortion under conditions of rape. They will thus be counting on Rubio to handle an issue that holds demonstrable political danger much more deftly than Todd Akin did.