Democrats Are Not Making Sense on Abortion

Pelosi wants to vote again on a sweeping abortion bill that's DOA in the Senate. Warren wants abortions at national parks. This is not helping.

Dear readers,

You may have noticed there was a late-scheduled January 6 committee hearing yesterday with some very interesting new claims about then-President Trump’s behavior immediately before the Capitol riot. Ken White and I put out a special “emergency” edition of the Serious Trouble podcast with thoughts on that. I encourage you to check it out.

But I’d still say the biggest news of the week is about abortion.

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I wrote on Friday about next steps after Dobbs — what Democrats can do to secure abortion rights without the Supreme Court doing it for them. In a key way, Democrats start from a position of strength: the electorate is more pro-choice than it is pro-life, and a regime permitting a large majority of the abortions that were permitted under Roe and Casey should be possible to vindicate through elections and legislation.

Matt Yglesias has some useful additional thoughts today, including about the benefits of conventional protests — that is, protests (like most of those we’ve seen in the last week) that are conducted in such a manner that they draw attention to their message, not their tactics. These appear to do a little bit to move election outcomes toward the protesting side, and every little bit helps.

I was also pleased to see Shannon Watts, founder of Moms Demand Action, second my call for Democrats to strategically use ballot measures and initiated constitutional amendments to secure abortion rights at the state level. I noted Democrats have had success with this tactic on issues where there’s a gap between Republican lawmakers and the electorate that elected them — like minimum wage and Medicaid expansion — and Watts notes it’s been a way to enact certain gun control measures, too.

I was less pleased to see House Speaker Nancy Pelosi’s Dear Colleague letter from Monday, in which she said the House will vote again on the Women’s Health Protection Act, a bill to codify certain abortion rights that goes somewhat beyond where the Roe and Casey decisions did. The bill hits the notes the abortion rights non-profit groups want hit — which seems to be the only thing that matters for Democrats in Congress these days — but it’s sufficiently extreme that every single Republican in the House and Senate, even the ones with otherwise pro-choice voting records, felt comfortable voting against it.

What is voting on this again supposed to achieve? I guess it’s supposed to send the message that Democrats favor a very expansive vision of abortion rights — more expansive than was required by Casey, more expansive than prevails across Europe, and more expansive than the median voter favors.

I think some liberals are missing the point a little bit about why you would bring up a narrower bill. It’s not to say Democrats favor less expansive abortion rights. A bill that is more limited — for example, a bill establishing a national right to abortion in the first trimester — is a bill to expand federal protection for abortion rights, a protection which no longer exists after Dobbs. It is a bill that sets a floor, not a ceiling. Establishing a federal right to abortion in the first trimester does not prevent a state from going further to expand abortion access, nor does it require any state to prohibit or severely restrict abortion in the second trimester.

The key purpose of a vote on such a policy is to send a message about where Republicans stand — do they oppose the widely popular idea that abortion should be legal in the first trimester? Let’s make them vote on that and get the contrast out there: Show voters that the Republican position is extreme while Democrats stand with the median voter.

The same applies to a right to abortion in cases of rape and incest, a prohibition on criminal penalties for women who obtain abortions, and any number of other more limited bills. Maybe some limited measures could even pass the Senate and become law — great. But even if not, we will have given voters important clarity about what extreme positions Republicans support and Democrats oppose.

This seems like a no-brainer — on Twitter, I even got a lot of agreement with my Friday article from partisan Democrats who normally find me annoying. It’s the only logical thing to do in the post-Roe reality: the protections of Roe don’t exist anymore (indeed, they’d already been significantly eroded even before Dobbs) and so any incremental protection Democrats can obtain is progress, not a setback and not a compromise.

So why isn’t that the strategy in Congress? Yglesias says the blame lies where it so often does — with The Groups, and with Democratic politicians who are inexplicably concerned with what The Groups have to say.

Matthew Yglesias @mattyglesias

The problem here, as I understand it, is that the main choice groups oppose moving any legislation short of WHPA and none of the members of congress want to tell them they are wrong about this.

Unionize Every Starbucks @AliMortell

Are any democrats working on a life-of-the-mother exception bill? If not, why not? Why are we not forcing Republicans to tell us whether or not they will make exceptions for miscarriages or when the mother's life is in danger?

I want to remind Democratic officeholders that The Groups are staffed by pudding-brained morons. I wrote about these losers a few weeks ago, when they were lecturing liberals about the harmfulness of using the word “choice” to discuss abortion rights. Real useful, guys (and yes, a lot of them are guys.)¹

My suggestion to Nancy Pelosi is, do this to The Groups, and then send out a new Dear Colleague with better ideas in it:

No urgency, it’s only the abortion rights of over a hundred million American women that depend on it, and it’s not like they’re an important constituency for the party or anything.

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There’s another odd abortion-access idea floating around Washington, which is that the Biden administration should capitalize on the constitutional inability of states to enforce state laws on federal lands without the federal government’s permission, by setting up abortion facilities on such federal lands. Sen. Elizabeth Warren has specifically suggested they do this on lands belonging to the National Park Service, which unlike other major administrators of federal lands has not invited states to enforce their laws. (Laws in national parks are enforced by park rangers employed by the federal government.)

I understand the impulse here, but I also think the Biden administration is right to reject this idea, for several reasons.