The Sudden Silence of Conservative Abortion Foes

A piece in The Atlantic looks at the unusual silence on the political right in the wake of the Texas law that bans almost all abortions even in cases of rape and incest.  For Republican office holders both inside and outside of Texas the law - which sets up a vigilante framework - may yet turn out to be a case of "becareful what you wish for." While the Supreme Court punted on the issue last week under the guise that there were no government officials to enjoin from enforcing the law, the private vigilante framework set up by the law could result in federal prosecutions of the private citizens for interferring with constitutional rights of the targets of their vigliante justice as set out in a column in the Washington Post by a noted legal scholar.  Moreover, the law could trigger a backlash harmful to Republican prospects in 2022 - or 2021 here in Virginia - and has prompted some calls already to end the U.S. Senate filibuster so that federal legislation can be enacted that would supercede the Texas law.    Here are excerpts from The Atlantic:

[S]omething strange has happened since a new Texas law that practically bans abortion after six weeks went into effect this week, with the passive assent of the U.S. Supreme Court. Liberal groups have been predictably furious and upset, though they recognize that Democrats who control the White House, the House, and (tenuously) the Senate cannot do much. More left-leaning and centrist media outlets, having largely ignored the law before it went into effect, have now entered overdrive in their coverage.

But conservatives have been conspicuously silent. As Vox’s Aaron Rupar, who obsessively tracks Fox News, noted, the network paid little attention to the Texas law for much of the day Thursday. Later in the evening, Tucker Carlson did discuss it, sprinkling bad information in as he went. Some anti-abortion organizations have celebrated the news . . . . But across much of the right, reaction to the law, and the Court’s refusal to block it, have been met with either silence or muted approval.

Why is this moment playing out differently? One possibility is that many anti-abortion conservatives understand that their victory this week is tenuous. Texas’s law relies on a novel mechanism: Rather than imposing a state-enforced ban on abortions, it allows private citizens to bring suits against people who provide or even abet abortions after six weeks. “​​The statutory scheme before the court is not only unusual, but unprecedented,” wrote Chief Justice John Roberts, who would have blocked the law, in a dissent.

In a one-paragraph decision, however, the majority concluded that because the law hadn’t been enforced yet, and because there were no government officials to enjoin from enforcing it, the Court couldn’t rule on it. That may be a dubious cop-out, but at some point the case is likely to come before the justices again on the merits, and before other judges.

Many constitutional scholars are skeptical that the law can withstand such a challenge, and so celebration now may be premature. In the meantime, antagonizing the judicial system with football spikes may be unwise—no matter how much judges are meant to insulate themselves from any such feelings.

A second theory is that conservatives understand the law will be unpopular. This is probably true, and to some extent explains the understated reaction on the right. Polls generally find that 60 to 65 percent of Americans oppose overturning Roe v. Wade. Although a majority of Texans may support the law, and indeed a majority of voters in other red states, the national political landscape is not so friendly.

For decades, my colleague David Frum writes, “opposition to abortion offered Republican politicians a lucrative, no-risk political option.” Many GOP candidates seemed to adopt the position hypocritically, never wanting such rules to apply to their own wives and daughters, but conscious of the power and money of the religious right. Railing against abortion is easy as long as you assume that no court will actually outlaw it and you won’t alienate swing voters (say, suburban women) who lean conservative but back the right to choose.

Now Democrats are hopeful that backlash will aid them in an uphill 2022 midterm battle, my colleague Elaine Godfrey reports. Why would Republicans tout a victory most people will see as a defeat?

Not only is banning abortion outright unpopular, but overturning Roe might be a Pyrrhic victory for the national Republican Party, which would lose one of its strongest wedge issues. The abortion wars would not end (they never will), but the end of Roe would shift the battlefield and might take some momentum away from the right.

Donald Trump grasped the importance of abortion politics to capturing religious voters who were otherwise queasy about his moral character. In the end, those moral qualms were accurate, but religious conservatives mostly decided that they didn’t care and they got the judges they wanted out of it. But now, voters who have been eager to elect GOP candidates because they want Roe gone won’t feel the same urgency to vote—a special risk when there are signs that Republicans, rather than Democrats, are now the party of low-propensity voters.

For them, the unpopularity of Texas’s law and other drastic abortion legislation is, at most, a second-order concern. They want to ban abortion, full stop, and any political considerations matter only insofar as they serve or conflict with that mission. Anti-abortion activists can read the polls as well as anyone else, and they understand that at least some access to abortion remains more popular than not.

As the impact of Texas’s law sinks in, Republican elected officials in several states have begun to express interest in exploring their own version of the law. In part, that reflects the demands of conservative bases in their home states, and in part it reflects a recognition that as long as Democrats are eager to make a fuss about the issue, it will get attention. The quiet may end soon, but the underlying political obstacle course for conservatives seeking to eliminate Roe isn’t going away.