One of the heated intra-conservative debates of late is over the benefits of different pro-life political strategies. Should the pro-life movement push for more moderate bills such as 14-week bans, or should it adopt Alabama’s approach and ban nearly everything? Should it adopt an incrementalist approach or an absolutist approach?
There is a large consensus that, despite being Republican appointees, Justices Kavanaugh and Roberts cannot be trusted to overturn Roe. Consequently, there is a risk for the 5-4 conservative Supreme Court majority to turn into a defeat of 4-5 or even 3-6 on abortion policy. However, the likelihood of such a defeat depends upon which law is before the court. Roberts and Kavanaugh may be willing to uphold a 14-week Dilation and Evacuation abortion ban, but they are less likely to uphold Alabama’s all-out ban.
I have long found myself on the incrementalist side of this debate. Alabama is gunning for the end zone, so to speak, and I applaud the state for its bravery. However, the end zone is still far away. I believe such an ambitious move is unlikely to work and I fear more ambitious pro-life legislation is not yet popular enough for a 5-4 conservative(ish) Supreme Court to uphold. This being so, I have believed passing moderate abortion restrictions one at a time to be the more prudent strategy.
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However, I am now jumping ship to join forces with the Alabama absolutists, because incrementalism is dead.
We should have had this incrementalism vs. absolutism debate before Alabama passed its landmark abortion bill, and we should have encouraged Alabama to pass a more moderate piece of legislation. But now that the bill is signed into law, for better or worse, Alabama has committed us to the absolutist approach. The pro-life movement has passed the incrementalist path and there is no turning back. Our best remaining option is to floor it down the path Alabama has chosen for us.
Some incrementalists continue to insist on their moderate strategy. It is possible that the Supreme Court will uphold a 14-week ban yet strike down the more ambitious ones. Under this scenario, states that go for broke with the more ambitious bills will find themselves empty-handed, while the incrementalist states will have made some progress. Thus, incrementalism maintains its merits, some would say.
Though such a judicial hypothetical is very possible, this still is not a strong argument for incrementalism in the post-Alabama bill era.
States with a pro-life majority strong enough to pass a heartbeat bill or an Alabama-style ban will certainly be capable of passing moderate bills in subsequent elections, if necessary. For example, in Alabama’s previous state legislature before the 2018 election, Republicans held a 26 to 8 supermajority in the Senate and a 72 to 33 supermajority in the House. In the election prior to that, Republicans won 23 to 11 in the Senate and 66 to 37 in the House. The pro-life majority in Alabama has been around for a while, and it’s not leaving anytime soon.
The same can be said for other red states that could add to the tidal wave of pro-life legislation. For example, the Arkansas GOP currently has a 26-9 supermajority in Senate and a 76 to 23 supermajority in the House. Before the 2018 election, they led 26-9 in the Senate (again) and a 73-27 in the House. Similarly, the Oklahoma GOP currently has a 76-25 supermajority in the House and a 39 to 9 supermajority in the Senate. Before the 2018 election, they led 75 to 26 majority in the House and 38 to 8 in the Senate. If these states passed an ambitious abortion bill that subsequently got struck down, they could easily pass a more moderate bill later. Thus the merits of incrementalism in the post-Alabama bill era of pro-life policy are essentially non-existent.
It is also worth noting that the pro-life majority in local legislatures is sometimes larger than the Republican majority. While the radical Democratic presidential candidates may lead you to believe otherwise, there are several pro-life Democratic legislators in the more pro-life states. Louisiana’s new heartbeat bill was sponsored by pro-life Democrat John Milkovich and signed into law by Democratic governor John Bel Edwards.
My fellow incrementalists could continue arguing about why their path is better and why they think Alabama screwed up, but frankly, this is not productive. Since Alabama has committed us to the absolutist approach, we need to commit to it as best we can. The more heartbeat bills and complete abortion bans we can pass before one of them arrives before the Supreme Court, the more likely Justices Kavanaugh and Roberts are to rule in our favor. If pro-lifers want to see the post-Roe era of American politics begin any time soon, they’d best join the Alabama absolutists and go all-in.