When three red states finalized severe restrictions on abortion over consecutive days last week, they highlighted the GOP’s rising militancy on the issue – and the political and legal calculations underpinning it.
Separate actions last week in Oklahoma, Florida and Kentucky made clear the red state drive to retrench, or eliminate, access to abortion is escalating as the Republican-appointed Supreme Court majority nears a decision, expected in late June, in which it is widely anticipated to overturn Roe v. Wade, the landmark 1973 decision that established a nationwide right to abortion.
The abortion restrictions these states approved last week all denied exceptions for victims of rape or incest – a provision that was once a common feature of conservative anti-abortion proposals but has been jettisoned almost completely in the wave of new restrictions approved since 2021. The Oklahoma legislation banned nearly all abortions from the moment of conception and imposed severe penalties on doctors who perform them, including up to 10 years in jail. The Kentucky bill, continuing an offensive already underway in several other red states, prohibited state residents from obtaining medication abortion through the mail, as the federal Food and Drug Administration authorized late last year.
Taken together, the sweeping bills finalized last week show how the sympathetic signals from the Republican-appointed Supreme Court majority are changing the strategy of red states. In earlier legislative sessions, Republican-controlled states generally had either passed abortion restrictions designed to provide a test case the Supreme Court could use to overturn Roe or had approved bills crafted narrowly enough that they hoped they could survive legal challenges while Roe remained the law, says Mary Ziegler, a Florida State University law professor who studies the history of abortion law.
But after former President Donald Trump’s appointments of Brett Kavanaugh and Amy Coney Barrett established a clear conservative majority on the court – and particularly since that majority signaled during last year’s hearing on a challenge to Mississippi’s 15-week abortion ban that it is inclined to retrench or entirely scrap Roe – the red states are removing the veils to more clearly indicate where they will take the law if the court allows them.
“We are seeing this pattern because the Supreme Court’s conservative majority has signaled that it is ready to reverse Roe,” Ziegler told me in an email. “Now, we are getting a sense of what red states really want to do when Roe is gone. That is why we are seeing bans from fertilization – as in Oklahoma – and laws that focus on abortion pills, which will be crucial in determining whether bans will be effective.”
All of this is coming even as a January CNN survey conducted by SSRS found that more than two-thirds of Americans oppose the court overturning Roe v. Wade. Abortion restrictions routinely draw broader support in red states, but even in them, a 2018 state-level analysis by the nonpartisan Public Religion Research Institute shared with CNN found that in most cases, a majority of residents do not want to completely ban abortion – despite the fact that several states have passed “trigger” bans to do so if the Supreme Court allows it.
Against that backdrop, the severe abortion restrictions rapidly proliferating in red states represent a bet from the Republicans controlling them that they can satisfy the demands of their most ardent base supporters without facing any consequences among more centrist voters in their coalition who are uneasy, or outright opposed, to the new limits. Across the red states, Republicans are placing a similar wager on the broad wave of other bills they have approved in rapid-fire succession since 2020 to limit transgender rights, censor classroom discussion of race, gender and sexual orientation and ban certain books.
If that bet pays off, and red state Republicans suffer no midterm defections over this surge of socially conservative legislation – an outcome that may be the most likely possibility amid the extensive public discontent over President Joe Biden’s performance – pressure inside the party to lurch policy further to the right will only intensify, not only on abortion, but also on the broad range of cultural issues energizing conservative activists.
A rising tide of legislation
Even amid the increasing red-state focus on the issue since 2021, last week’s activity constituted a kind of crescendo. On Tuesday, Oklahoma Republican Gov. Kevin Stitt signed one of the nation’s most sweeping bans, which bars almost all abortions, denies exceptions for rape and incest and imposes felony penalties, including up to 10 years in prison, on doctors who perform or attempt to perform the procedure. On Wednesday, the Republican-controlled Kentucky state legislature overrode a veto from the state’s Democratic governor, Andy Beshear, to approve legislation that bans abortion after 15 weeks also without exceptions for rape and incest, prohibits the distribution of abortion pills through the mail and imposes so many restrictions on abortion clinics that neither of Kentucky’s two facilities is expected to continue operating in the state. Then on Thursday, Florida’s Republican Gov. Ron DeSantis signed into law that state’s 15-week abortion ban, which also contains no exceptions for rape and incest.
These hardline bills continue the clear pattern of the past two years. Elizabeth Nash, who tracks state policy for the Guttmacher Institute, a think tank supporting reproductive rights, says that since 2021, 12 Republican-controlled states have passed laws restricting or banning abortion. Of those, she says, only the new limits approved in Idaho, South Carolina and Wyoming preserve some exemptions for victims of rape and incest.
The removal of exceptions for rape and incest in the new state laws represents only one of the ways in which red states are escalating their campaign against abortion. Since 2021, seven Republican-controlled states have banned distribution of medication abortion through the mail, despite the FDA ruling. Texas, in another case that’s reached the Supreme Court, last year created a “vigilante” lawsuit system that authorizes private litigation against anyone who assists or provides an abortion (although not the woman herself) after cardiac activity can be detected, which can be as early as six weeks into pregnancy. Idaho has incorporated a similar approach into its “heartbeat” abortion ban as well.
More states may follow before this legislative season ends. Republican-controlled legislatures in Ohio and Louisiana may advance new abortion bans, with further action under discussion but less likely in Alabama, Missouri, South Carolina and Tennessee, Nash says. Separately, Missouri, Tennessee and Ohio may bar residents from obtaining medication abortion solely through the mail. Oklahoma could also supplement the ban Stitt signed last week with several additional measures, including a bill authorizing Texas-style private lawsuits (which are also under discussion, if less imminently, in Ohio and Louisiana).
Red states are also discussing ways to extend the reach of their restrictions beyond their borders. A Republican state legislator in Missouri has proposed to authorize lawsuits against people in other states who help a state resident obtain an abortion. After Citibank indicated it would pay expenses for Texas employees who traveled out of state to obtain abortions, a Republican Texas state legislator last month threatened to introduce legislation barring companies that did so from local government contracts.
This increasingly confrontational posture toward abortion in red states tracks with the GOP’s trajectory on other social issues. Republican-controlled states have also moved toward more militant positions on LGBTQ issues, not only banning transgender women and girls from school sports, but also initiating child abuse investigations against parents (Texas) and criminal penalties against medical professionals (Alabama) who provide gender-affirming treatment for transgender minors. A broad red-state push to limit how race and gender are discussed in public school classrooms has spilled over to new measures to restrict how teachers talk about sexual identity and orientation (such as the Florida legislation critics call the “don’t say gay” bill, which DeSantis recently signed into law), and proposals to make it easier to ban books they don’t approve of not only in school libraries, but also in public ones.
Democrats struggling to respond
On every front, ideas that once might have been considered on the fringe inside the GOP have moved rapidly into law – and, in most instances, inspired copy-cat proposals in other states. Democrats have struggled to respond to this offensive, both at the state and national level. In Washington, the House of Representatives has passed legislation that would codify a national right to abortion and undo many states’ moves against transgender youth, but Republican-led filibusters have blocked those proposals in the Senate (along with the House-passed bill that would override the voting restrictions many of these same red states have approved). And though state Democrats have voted almost en masse against these policies, as well as the voting restrictions, the party has been divided over how much to stress its opposition to them in the midterm elections – frustrating some party strategists in the process.
“It is critical that Democrats take this radicalization we are witnessing and make it into a kitchen table issue,” says Simon Rosenberg, president of NDN, a Democratic research and advocacy group. “That has to be part of the discourse with the American people this year in order to make this into a competitive election, because it is the single most important thing happening in our politics.”
Of all the socially conservative causes Republicans are advancing in the red states, abortion is probably the issue Democrats feel most comfortable contesting. As CNN recently reported, with the Supreme Court decision approaching, a wide array of Democratic candidates are stressing their commitment to preserving abortion rights.
“I do think they are overplaying their hand electorally, because November could be the first election we’ve had in decades when Roe is not the law of the land, and I think the backlash will be very swift and severe,” says Christina Polizzi, press secretary for the Democratic Legislative Campaign Committee.
Polls have consistently found that a solid majority of Americans oppose overturning Roe – with that resistance extending well into the Republican coalition. In the January CNN survey, not only did 69% of all adults oppose ending the constitutional right to abortion, so did 43% of Republican men and a striking 47% of Republican women, according to detailed results provided by the CNN polling team. In a follow-up question, nearly three-fifths of all adults said that if the Supreme Court did overturn Roe, they wanted their states to make their abortion laws more permissive, while only 40% wanted them more restrictive. About one-third of both Republican men and women joined the majority who preferred that state laws become more permissive.
Support for abortion restrictions, not surprisingly, is greater in red-leaning states, whose populations typically include more of the White evangelical Christians who compose the core of the social conservative movement. When the Public Religion Research Institute tabulated state-by-state abortion attitudes in a massive 2018 poll, it found that majorities in Mississippi, Idaho and Arkansas – states that have imposed some of the latest restrictions – said it should be illegal in all or most cases, according to results provided by the institute’s research director, Natalie Jackson. But clear majorities said it should be legal in all or most cases in Florida and Arizona, where Republicans have passed new restrictions, and slight pluralities echoed that position in Georgia, Texas and Oklahoma – three other states where Republican officials have voted to limit access.
More recent surveys have also found unease with the restrictions. Nearly 3 in 5 Florida voters opposed the state’s 15-week abortion ban in a University of North Florida poll earlier this year. (Half of those polled were told that the bill offered no exceptions for rape and incest – and only 51% of even Republican voters who were given that information backed the ban.)
In Texas, a University of Texas/Texas Tribune survey has found state residents split almost exactly in half over the fetal heartbeat abortion ban but a clear majority opposed to the separate “trigger” bill the legislature approved to ban all abortions if the Supreme Court allows it. Other UT polls have found that fewer than about 1 in 8 Texas residents want to ban abortion without those exceptions for rape, incest and the woman’s health, and a solid majority oppose the legislation authorizing private lawsuits against those involved in providing abortions. That opposition encompassed a significant portion of Republicans: two-fifths of Republican women and about one-third of Republican men said they opposed the absolute “trigger” ban and about one-third of Republicans opposed the private lawsuit bill.
Voters’ reactions may be crucial
The future of the anti-abortion drive in red states – and the broader movement to roll back civil rights and liberties there – will likely pivot on how the Republican voters uneasy with these proposals respond to them. These polls show that in theory the sharp right turn on abortion and other social issues from red-state Republicans could fracture the electoral coalition that now allows them to dominate these states.
But in practice, many observers believe, Democrats face significant obstacles to peeling away many Republican-leaning voters unhappy over these issues, in the near term at least.
“That 40% of Republican women may oppose banning abortion,” says James Henson, director of the Texas Politics Project at the University of Texas at Austin, “but in a campaign situation” Republicans can overcome that hesitance by shifting those voters’ focus toward other issues where they disagree with Democrats.
Even if the Supreme Court overturns Roe, he says, the GOP’s odds of holding those voters are magnified by a midterm environment in which ordinarily Republican-leaning voters have so many objections to the performance of Biden and other Democrats, from inflation to immigration. “The environment shapes what you can get leverage on and what people will respond to, and it’s a very noisy environment right now,” Henson says.
Red state Republicans broadly share that confidence. As Matt Mackowiak, an Austin-based GOP strategist, told me earlier this year, “I do not expect to see a suburban revolt due to the legislature’s priorities.” Rather than losing suburban support over the right’s turn on abortion and other social issues, he predicted the Republican vote share will rise “due to parental anger at school and Covid overreach.” Republican Govs. Greg Abbott in Texas and DeSantis in Florida, who have pushed some of the most aggressive social conservative agendas, are considered strong favorites for reelection in November, and Tennessee GOP Gov. Bill Lee, who has matched them step for step, does not even have a serious Democratic opponent.
Tresa Undem, a Democratic pollster who focuses on issues relating to gender equality and politics, agrees that few Republican women who support abortion rights are likely to defect from the party coalition if the court overturns Roe. Her extensive surveys have found that the vast majority of them still share the broader unease with cultural change in American society that has energized the GOP coalition in the Trump era. “Republican women don’t vote on” abortion, she says.
But Undem thinks the situation could be very different among women who identify as independents. That’s especially likely, she thinks, if the Supreme Court’s ruling so unambiguously rescinds Roe that it generates sustained media coverage.
“I think if it’s outright overturned, and this breaks through, people learn about, it will definitely affect independent women,” she says. “I keep going back in my mind to Texas. I was stunned; we did a focus group of independent women and they said things I have never heard. At least half the women said something like this: ‘I have never even really cared who the governor was of Texas, but my skin crawls thinking about the issue of (the private lawsuits Texas authorized against abortion providers).’ It’s the signal of all that other power and control that they think politicians have over their lives.”
The January CNN survey underscores that possibility: Fully three-fourths of women who identified as independents said they opposed overturning Roe. Yet with so many other challenges at this tumultuous moment in American life shaping voters’ attitudes, it’s far from clear that those concerns will translate into votes against the Republicans advancing those laws. Even many voters opposed to the abortion restrictions, Undem acknowledges, may calculate, “I don’t think I am going to need an abortion, but I am filling up my (gas) tank right now.”
The safest prediction may be that if Republican governors and state legislatures run well this November in the states moving so sharply to the right on abortion and other cultural issues, they will be emboldened to continue pushing the frontier of such legislation.
There are no signs the current round of targets represents the outer boundary of ambition for the social conservative movement or the red-state Republican officials responding to it. During the recent confirmation hearings for incoming Supreme Court Justice Ketanji Brown Jackson, three Republican senators suggested the court had erred in previous decisions that prevented states from barring the sale of contraceptives or blocking interracial and same-sex marriages. The total abortion bans, prohibition on mail distribution of medication abortion, discussion of extending private lawsuits across state lines and punishment of companies that help employees obtain abortions outside states that are prohibiting them signal where red states may move next on that front.
All of which suggests that if voters don’t send a cautionary signal in November, the red-state drive may be just beginning to roll back the “rights revolution” of the past six decades – and return the US to a pre-1960s world in which people’s basic civil rights and liberties varied much more depending on where they lived.