The Alabama Abortion Ban and Methodology

Earlier this week, Alabama passed a law that made it illegal for a doctor to perform an abortion at any stage of pregnancy except in cases where the mother’s life or health would be seriously in danger or the child has a “lethal anomaly.” This is the most restrictive abortion law in the country and has, to put it mildly, stirred the pot a bit, both between the pro and anti-abortion crowd as well as igniting a lively debate about means within the pro-life movement.

Before we get into that, I want to specify some things about the bill. It does not punish women who get abortions in any way. That’s expressly addressed in section five of the bill. It charges doctors who perform an abortion with a class A felony, which is the same punishment, not greater, than rape. Someone had gotten traction on twitter saying that the bill punishes abortion more than rape. That is nonsense. The bill was also proposed by and signed into law by women. The notion that this was a crusade spearheaded by white men in untrue. Moreover, the gap between men and women on the issue of abortion is small, so the argument that the question of abortion is men against women broadly is silly. I encourage you to read the bill for yourself (it’s not long), especially if you want to pontificate about it.

The passage of the bill on Wednesday reignited the old battle between those supportive of and those opposed to abortion. However, the radical nature of the bill opened up a more interesting debate between those of us opposed to abortion about our methodology. People like Ben Shapiro, Ramesh Ponnuru, and Guy Benson said this bill was a step too far too quickly, scorning the incremental approach we have relied on for the past 40 years. David French, Lila Rose, and much of the grassroots crowd said that bills like this are the end goal we must reach as soon as possible, as well as moral declarations important in their own right.

Up front, I think bills like this are the right end goal. No one has a right to decide which lives matter and which lives don’t. Every child ought to be welcomed in life and protected in law. I also suspect a lot of the conservative opposition to this bill is tyranny of the status quo. However, I find myself in agreement with the incrementalists. Bills like this are not the way forward for the anti-abortion movement, even if they are the destination we seek to arrive at.

The Alabama law is, under present law, flatly unconstitutional. I think that the decisions protecting a right to an abortion are an aberration. But they are for the time being precedent, and this law will be struck down in the courts before it takes effect, meaning it will not stop one abortion in Alabama.

Nor will this law reach the Supreme Court. On a general level, I’m skeptical whether the present court would make a major ruling whittling down the supposed right to an abortion. However, if they do, this Alabama law isn’t going to be the one they use to do it. The Court likes to work from material most people can sympathize with. The most stringent abortion restriction in the country doesn’t fit. Moreover, if there are judges on the fence about limiting abortion rights, a total abortion ban doesn’t seem likely to win them over.

This law will not go into effect, nor will it be granted cert before the Supreme Court. It serves only, as Jonathan Last of the Bulwark says, as great promotional material for those who support abortion.

Beyond ineffective, this law represents a grave political error. As we’ve discussed before, most Americans support moderate abortion restrictions such as a 20-week ban. But with regards to a total abortion ban, even most “pro-life” people are not there yet. This law alienates friendly and needed moderates to appease conservative activists. There is nothing cowardly about recognizing what battles are unwise to fight, especially when there are winnable battles to be fought elsewhere. Instead of spending our resources totally banning abortion in Alabama, which will accomplish nothing, why don’t those of us who oppose abortion focus on overturning Roe, fighting the pro-abortion legislation proliferating in blue states, or passing the Born-Alive Abortion Survivors Protection Act? From there, we can go back to the table for more.

The response to this is that abortion is a moral evil that needs to be fought tooth and nail now, regardless of whether “the culture is there yet”. Lila Rose, President of Life Action, made this point, arguing that the culture wasn’t there to free the slaves in 1863 either. I agree with the sentiment that we must fight abortion whether we have popular support behind us or not. But that abolition of slavery was not without difficulties. It took the Civil War, 600,000 dead men, federal occupation of the Southern states, and 100 years of state-sanctioned discrimination to establish equality under the law. That’s not to say it wasn’t worthwhile or necessary, but we tend to forget the problems caused by heavy-handed approaches.

Using government action to move the culture forward quickly leaves scars. Maybe those scars are necessary. But what can be accomplished through less blunt means is to be preferred to more forceful approaches. We have support to mount a real push for a federal 20-week abortion ban. Why don’t we do that, instead of trying to force the culture to a place we aren’t at yet, especially when it will likely achieve nothing in practice?

Also, abortion bans like the one in Alabama beg harder questions we aren’t ready to answer yet. Are morning-after pills abortion? What do we do in cases of rape, which the Alabama Senate rejected an exception for? These are harder questions for the anti-abortion movement to tackle. Focusing on them now, when we are still fighting easy questions like a national third-trimester ban, doesn’t help. It actually detracts from our central purpose and makes us look heartless.

Moreover, there is an argument that the anti-abortion movement was born over the Supreme Court getting out over their skis in Roe when public opinion was liberalizing on abortion already. Even if I’m not totally on board the historical analysis, conservatives ought to be wary of triggering a pro-abortion backlash by making a similar mistake.

History tells us that caution and patience are virtues. The Alabama law throws both to the wind, accomplishing little in practice except giving ammunition to those who seek to maintain abortion. It is a warning that we in the anti-abortion movement are ready to fight. However, I am less concerned with fighting than winning, and the Alabama ban is not how we are going to do that.

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