Two primary facts emerge from a new analysis of state legislation regarding abortion over the past three years. First, elections matter. Second, 41 years on from Roe v. Wade, a majority of states, where a majority of U.S. women live, support new limits and protections for mothers and unborn children, rather than the permissive legal regime declared by the U.S. Supreme Court in 1973.
The new analysis, released by the Guttmacher Institute on January 2, accurately conveys the scope of the legislative tsunami over the past three years, with some of the favorite locutions of the abortion lobby tossed into the mix (e.g., the analysis sarcastically labels health standards for abortion clinics as “TRAP” bills, an acronym for “targeted regulation of abortion providers”). Every other legislative step is described in terms of “access,” at first glance a neutral term that in actuality treats abortion at all stages of pregnancy as a matter of opportunity rather than a grim act of personal or social desperation.
The wave of pro-life bills enacted from 2011 to 2013 reflects the 2010 elections and the reaction they represented to the Obama administration’s overreach on health care. In 2000, Guttmacher estimates 31 percent of U.S. women lived in one of the 13 states considered “hostile” to abortion. By 2013, nearly double that percentage, 56 percent, lived in one of the 27 states now labeled hostile to abortion. Twenty-four (if one includes conservative Nebraska, which has a nonpartisan legislature) of these 27 states have Republican legislative majorities and all but four have Republican governors. This “troubling trend,” as Guttmacher terms it, is a fruit, for better or worse, the polarization that’s occurred on this issue alongside the decline of pro-life leadership in the Democratic Party, after the death of Pennsylvania governor Bob Casey in 2000.
The state-legislative surge for life has strong prospects for at least the remainder of this decade. First, it represents the results of redistricting decisions that will be with us until 2020. Second, it follows an independent surge in pro-life opinion: Gallup polling on the abortion issue has shown a majority of Americans labeling themselves “pro-life” six of the last nine times this question was asked in national surveys, including in May 2013. Finally, the specific pro-life measures being adopted in the states are, in the vast majority of instances, supported by strong, even super-majority, percentages of Americans. Recent Gallup and Quinnipiac surveys show that the polling winds are favorable for making abortion illegal during the second trimester (64 percent support), banning abortion during the third trimester (80 percent support), having a 24-hour waiting period before an abortion (69 percent support), requiring parental consent (71 percent support), banning partial-birth abortions (64 percent support), and providing for informed consent about physical and mental health risks of abortion (87 percent support). Banning sex-selective abortion has 77 percent support nationally.
For champions of ever-greater “access” to abortion, the new frontiers involve allowing non-physicians to perform abortions, making medical abortions available by remote prescription outside Food and Drug Administration guidelines, and, in a few states like New York, formalizing legal abortions up to birth. None of these is a mainstream proposal. Right-to-life advocates should be encouraged by the realities that so dishearten the Guttmacher Institute. Four decades after the revolution that gave the nation abortion on demand, Americans clearly want something better for women and children. The federal courts can slow down this momentum, but the nation will benefit if judges let the people rule and continue to seek a path that eschews the the most barbaric abortion practices.
— Chuck Donovan is the president of the Charlotte Lozier Institute.