The anti-abortion laws passed in recent days by legislatures in Alabama and Georgia seem designed for one purpose: to get the Supreme Court to overturn its landmark 1973 Roe v. Wade ruling that guaranteed a woman’s right to an abortion. The Court — more solidly conservative now than ever thanks to the recent addition of Justice Brett Kavanaugh — may well uphold those new laws.
Will voters do the same?
Maybe not. There is plenty of evidence that citizens of conservative states are, to some extent, actually protective of abortion rights. It may not be something they proclaim in their offices, at church, or to pollsters — but their secret beliefs can become quite evident once they enter the voting booth. This should make the legislators who passed the new bills very nervous.
My home state of Kansas has been a hotbed of abortion-related activism for more than a generation. Most memorable, perhaps, were the 1991 “Summer of Mercy” protests in Wichita, where thousands of protesters flooded the city to blockade an abortion clinic operated by Dr. George Tiller; over the course of six weeks and more than 2,600 people were arrested. Anti-abortion protests in Kansas have, on occasion, congealed into violence: Tiller’s clinic was firebombed in 1986; he was shot and injured by an abortion opponent in 1993; he was shot and killed by another abortion opponent in 2009.
But the state’s record on abortion is more mixed than Tiller’s story might suggest. Take, for example, the story of Phill Kline, someone you’ve likely never heard of but whose rise and fall could be a warning sign for anti-abortion legislators in Kansas and other red states today. Kline spent a decade as a culture warrior in the Kansas legislature before being elected the state’s attorney general in 2002. He used the perch to go on an anti-abortion crusade, ultimately bringing more than 30 misdemeanor charges against Tiller in 2006. A judge threw out those charges; Tiller was acquitted in a follow-up case the following year.
But voters in the famously red state of Kansas had enough: Kline lost his re-election campaign, badly, with just 41 percent of the vote. He managed to get himself appointed as district attorney in Johnson County, home to prosperous Kansas City suburbs, only to lose a primary election two years after that. These days, he’s on the faculty at Liberty University in Virginia, having lost his law license for misconduct during the abortion investigations.
Kansas is hardly a progressive state, but voters here often tire quickly of extremists. The same is probably true in other conservative states. While America’s abortion politics are polarized, many citizens are closer to the mushy middle on abortion — morally squeamish about it, but sometimes willing to suspend those qualms when faced with difficult decisions for themselves or their family members.
Across the nation as a whole, just 17 percent of Americans say Roe should be overturned entirely, and this reality is reflected at the state level: In 2008, voters in the solidly-Republican state of South Dakota overwhelmingly rejected a statewide ban on abortion — and repeated the feat two years later, even after exceptions for incest and rape were added to the proposed law. In 2011, Mississippi voters rejected a similar referendum by an even larger margin. Back in my home state of Kansas, the state Supreme Court last month ruled — shockingly — that the state constitution protects the right to an abortion.
“There’s a lot of public pressure to be anti-abortion,” Marvin Buehner, a South Dakota OB-GYN said at the time of the 2008 proposal. “People are more likely to answer the poll that they’ll support [a ban]. Then they get into the ballot booth and decide they just can’t vote for something like that.”
These sweeping new laws do very little to assuage the concerns of such voters. Alabama’s bill, for example, makes no exception for incest or rape. Georgia’s law would grant personhood protections to fetuses just six weeks after conception. Even if the Supreme Court upholds the laws, the examples from Kansas, Mississippi, and South Dakota suggest that legislators who passed these new bills could find themselves suddenly vulnerable.
Of course, that won’t satisfy pro-choice women and men who believe the right to abortion is just that — a right, to be defended by government, not compromised by it. “Today’s women can only thrive in a state that protects their most basic rights — the right to choose when and whether to start a family,” Andrea Young, executive director of Georgia’s ACLU, said last week, pledging to challenge the state’s new law.
Despite the high stakes of the coming court battles over the new anti-abortion laws, the Supreme Court is not the end of the line. In politics, few battles are ever completely won or lost. Nearly 50 years after Roe v. Wade, the fight may just be beginning anew.