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Institutions and reproductive freedom

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Matt Yglesias asks a good question:

My friends in the choice movement keep assuring me that the pro-choice position is overwhelmingly popular, and that it’s overwhelmingly important that the Senate Democrats not permit an anti-Roe majority on the Supreme Court. Those propositions can’t both be correct, though, right? If pro-choice politics are popular, then a return of the abortion issue to legislative control should be good for pro-choice politicians (i.e., the Democratic Party) and only mildly bad for abortion rights in the medium-term (since purportedly popular pro-choice views would prevail in the congress and state legislatures within a few years once the purportedly unpopular pro-lifers were kicked out). The substantive downside is that it would become impossible to procure an abortion in, say, Texas, though my understanding is that it’s already extremely difficult to do so in practice, the procedure’s legality notwithstanding. Roe can only be massively important if the policy it embodies is unpopular nationwide, as it was at the time the decision was handed down.

First, there’s a telling empirical error here. Abortion rights were not unpopular at the time of Roe v. Wade. In 1973 (like today), there were majorities in favor of liberal access to first trimseter abortions. Public opinion on abortion has been basically consistent since 1967.

The bigger problem is forgetting an obvious fact about American politics: American political institutions are not majoritarian. I don’t know what it is about abortion that makes people forget they ever read Madison, but it’s true nevertheless. Abortion remained illegal in most states in 1973, despite the earlier shifts in public opinion against these laws, for two reasons, one of which is specific to the abortion issue:

  • Madisonian institutions heavily tilt in favor of the status quo, and also favor well-organized minorities over diffuse majorities. What happened was that after a few states liberalized their abortion laws in 1967-8, pro-life groups and the Catholic Church organized got organized in state legislatures and stopped reform bills from passing. (Remember, the latter was able to keep extremely unpopular laws banning contraception on the books in two New England states until the mid-60s.) Legislative abortion reform was stymied not because a majority of citizens like abortion laws, but because of institutional factors. These types of issues tend to be resolved by the courts because legislatures gain benefits from blame-shifting.

 

  • The pro-life minority was greatly helped by the most important factor behind this legislative inertia: the de facto exemption of affluent white women from abortion laws. Because affluent women either had access to safe grey market abortions or, at worst, could travel to jurisdictions were abortions were widely available, there was little incentive to repeal these laws. The state of formal abortion statutes matters most to women who are marginalized in the political process. The fact that truly committed pro-lifers are a relatively small minority is exactly what saves abortion laws; pro-life groups were powerful enough to keep them on the books but not powerful enough to enforce them equitably. Abortion laws that were enforced in a manner consistent with the rule of law would be repealed in about five seconds. There’s no reason that this pattern can’t reassert itself.

So in other words, there’s actually no inconsistency in the apparent paradox that Yglesias identifies. Just because a majority of people support abortion laws doesn’t mean that many states (or, as Atrios notes, the federal government) wouldn’t re-enact them, with the tacit understanding that if Tom Coburn’s daughter needed her problem taken care of, it could be done as long as the doctor was discreet. RepealingRoe would hurt the Republicans at the Presidential level–which is the closest approximation of majoritarian politics–but not necessarily elsewhere. And just because abortion bans aren’t popular doesn’t mean they won’t be legislated. Upper-class tax cuts aren’t popular either…

 

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