“The progress in Florida and the progress in nearly 20 other states is part of a new beginning for life,” Pence said. “I’m going to continue to be a voice for advancing the cause of the unborn on principle and compassion.”
Pence added that he trusts Republicans to choose a different leader other than former President Donald Trump for the 2024 GOP presidential nomination. Pence has not declared a 2024 presidential bid yet but is expected to do so in the coming weeks.
“With the challenges we’re facing at home and abroad, I have a sense the American people are looking for different leadership to take us back to the conservative agenda,” Pence said. “I believe different times call for different leadership, and I trust Republican voters to bring us to victory in 2024.”
The dig comes hours before Pence and Trump are both slated to speak at the National Rifle Association’s annual leadership summit in Indianapolis Friday afternoon.
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While a federal circuit court panel issued a partial stay until the ruling can be fully appealed, the reasoning on which both the plaintiff and Kacsmaryk partially based their arguments is arguably more eye-popping than the decision itself. Citing the Comstock Act, a sweeping anti-obscenity measure passed by Congress in 1873, Kacsmaryk found that it was patently illegal to access abortifacients by mail.
While the legal battle over mifepristone has real-world implications for millions of Americans, the decision itself portends a more aggressive agenda that extends well beyond abortion access. In citing the Comstock Act, Kacsmaryk tipped his hand.
Over 150 years ago, evangelical Protestant leaders, then at the height of their political influence, used state power to impose their personal, religious worldview on the entire country. It worked. But the Comstock Act, while still on the books, has been largely superseded by over a century of jurisprudence. That today’s conservative legal activists want to resurrect it suggests that we are in store for a much broader culture war — one that the right may win in a partisan Supreme Court but will lose in the political arena.
The Comstock laws (the first was passed in 1873 and companion acts cleared Congress in subsequent years, strengthening the statute) outlawed the interstate mailing of any device or medicine used to terminate a pregnancy, as well as written materials that instructed women and doctors how to terminate pregnancies. It also barred use of the mail to transport “obscene” or “immoral” materials — be it pornography or smutty literature — as well as contraceptive drugs and devices. They even banned personal letters whose content pushed the prevailing bounds of decency. The law explicitly encouraged states to address the same range of materials on an intrastate basis, and indeed, by 1900, 42 states had enacted their own Comstock laws.
Named for Anthony Comstock, a Civil War veteran who moved to Brooklyn after the war and became involved in citywide anti-vice campaigns, the federal law and its state equivalents represented a major victory on the part of evangelical Christian organizers who, in the 1870s, asserted an active role for religion in the public and political spheres. Concerned by the temptations that young people faced in the country’s burgeoning cities, these activists sought to reimpose Christian values and order in the defense of public health and safety. They also sought to curtail women’s reproductive rights in the service of maintaining a gendered hierarchy that the war and its dislocations had temporarily upended in the prior decade.
To understand both how and why evangelical Christians imposed their personal religion on the entire country, it’s helpful to take a step back.
In the decades leading up to the Civil War, America experienced a great religious awakening, as millions of ordinary people flocked to new evangelical churches. The ranks of the clergy swelled. Tract societies and evangelical newspapers became key staples of public culture. Evangelical Christianity also inspired a wave of reform movements that bridged otherwise disparate causes like temperance, public education and abolitionism. But while antebellum churches supported a range of reform movements, they focused for the most part on moral suasion — on filling pews and saving souls, and on convincing sinners to right their own ways — rather than using the political process for coercive measures.
Until the Civil War.
The war fundamentally politicized the nation’s evangelical churches, particularly in the North. Evangelical leaders, both lay and clergy, overwhelmingly agreed (in the words of Joseph Medill, editor of the ChicagoTribune and a deeply religious political activist) that the war was fundamentally a “war for Christian civilization.”
Individual denominations often blurred the line between the sacred and the secular in their own fashions. A Presbyterian synod likened the Confederacy to Satan’s attempted usurpation of the throne of God. At Methodist meetings, flags were often on prominent display and congregants were frequently encouraged to swear mass loyalty oaths. The churches raised money for the war effort, ran recruitment drives, sent thousands of clergymen into the field to serve as chaplains and staffed two government-sanctioned organizations: the Sanitary Commission and the U.S. Christian Commission, which ministered to soldiers’ physical and spiritual needs. They also lent full-throated support to the abolition of slavery and the government’s increasingly punitive approach to fighting a total, rather than limited, war against the Confederacy.
By 1864, support for the Union quickly evolved into support of the Republican Party.
Prominent clerics like Henry Ward Beecher, Granville Moody of Ohio and Robert Breckinridge — and hundreds of political clergymen, particularly in the battleground states of the Midwest — stumped for Lincoln and the GOP with impunity. On the eve of the election, Matthew Simpson, a leading Methodist bishop, rallied the faithful at the New York Academy of Music. In a special election version of his famous “war speech” — part sermon, part patriotic exhortation — the bishop waved a bloody battle flag belonging to New York’s 55th Regiment and called on all Christians to vote for “the railsplitter … president” in the upcoming canvass.
Whereas in the antebellum era, Protestant reformers focused on saving souls and influencing individual behavior from the pulpit, now they actively embraced politics.
Political Christianity came in different flavors. In the late nineteenth century, liberal Christians involved themselves with gusto in the Social Gospel, a new movement that advocated for safer and cleaner housing, public infrastructure and the right of workers to organize and strike.
The Social Gospel represented one, but not the only, outgrowth of the political brand of Protestantism that emerged from the 1860s. More socially conservative Christians threw themselves into a broad array of coercive social reform campaigns. Comstock, founder of the New York Society for the Suppression of Vice — an offshoot of the Young Men’s Christian Association — was the most prominent of the conservative leaders. He built a powerful coalition that worked toward criminalizing contraceptive devices, abortion, prostitution and pornography. Frances Willard, a devout Methodist, led the Women’s Christian Temperance Union, an organization devoted to the prohibition of manufacturing or selling alcohol. Unlike the evangelical reform movements of the mid-19th century, the brand of reform championed by religious leaders like Comstock and Willard focused on state intervention — and state power — rather than moral suasion at the individual level. In the same way that today’s conservative culture warriors are going to war with school librarians, teachers and corporate boards, the religious conservatives of Comstock’s day used politics to enforce their private understanding of what was right and righteous. Like their liberal counterparts in the Social Gospel movement, evangelicals concerned with vice and morality had learned during the Civil War to see a natural confluence between church and state.
Comstock began his anti-vice career as something of a crank, but with the support of New York’s evangelical church establishment — and later, as an official agent of New York state and the federal government — he proved devastatingly successful at imposing his particular understanding of morality on the American public. He was single-handedly responsible for the arrests of almost 100 people and the seizure of 202,214 obscene photographs and drawings, 21,150 pounds of books, 63,819 contraceptive items and abortifacients and innumerable devices designed for sexual pleasure — that is, 19th-century sex toys. He even managed to get a new edition of Walt Whitman’s classic, Leaves of Grass, barred from the mails.
Armed with state power, conservative evangelicals operated at the peak of their influence. In the coming decades, that influence waned as a rising wave of Jewish and Catholic immigrants made America more pluralistic and modern science challenged longstanding ideas about biblical inerrancy. But it was a testament to the organizing acumen of activists like Comstock that they were as effective as they were.
Fast forward to 2023, and it’s not at all clear how activist judges like Matthew Kacsmaryk believe they can wind back the clock. The Comstock laws have long been superseded by a statutory and legal privacy revolution — beginning at least with Griswold v Connecticut (1965) — that granted individuals the right to consume pornography, purchase sex toys, use contraception and, in roughly half the states, terminate a pregnancy.
In a world where telehealth is on the rise and most insurers encourage the use of mail-order prescriptions, the Comstock Act is both an obsolete tool ill-suited to the modern health care economy and a menace. If the statute bars the mailing of abortifacients — drugs used to perform a procedure that is still legal in half the country — doesn’t it also criminalize mail-order birth control and Viagra? Mail-order sex toys, lingerie, pornography (for those without a good internet connection) and steamy romance novels? Paintings depicting nudity?
The answer is yes, of course — if one applies consistent logic (a standard that has never much concerned conservative legal activists). And that is the tell. No thinking person would invoke the Comstock laws in a modern legal brief or court ruling unless they truly endorsed the use of state power to restrict private freedoms.
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But a six-week ban pushes the outer boundary of anti-abortion rights proposals. And it could spell trouble for DeSantis among independents and suburban voters in a general election, if he makes it that far.
“We’re going to make him own this, and his agenda, everywhere he goes,” said a national Democratic operative granted anonymity to discuss party strategy. “Goes to Michigan? Abortion ban. Goes to Ohio next week? Abortion ban. And that will take different forms but we’ll hang this incredibly toxic abortion ban and his agenda around his neck with different tactics.”
The operative added that this is one of many points on which to attack DeSantis who has taken several stances on social issues that Democrats believe won’t sit well with swing voters.
A spokesman for DeSantis declined to comment for this story. But Tony Perkins, the president of the Family Research Council, told POLITICO that a six-week ban isn’t the millstone Democrats believe.
“Consensus is building across the country that once there’s a heartbeat, it’s a human being,” he said. “So the governor isn’t out of step at all. … In fact, it bolsters his standing.”
Though DeSantis has not formally entered the presidential race, the campaign to tie him to a six-week ban is already beginning, according to interviews with more than a dozen people from several battleground states.
Nascent plans include attack ads, knocking on doors in swing states where polling shows abortion has become a more prominent election issue since the Supreme Court overturned Roe v. Wade in June, and registering voters throughout the country.
“Planned Parenthood advocacy and political organizations will make sure everyone knows his dangerous and radical record on abortion rights,” Jenny Lawson, vice president of the Planned Parenthood Action Fund said in a statement. The organization is considering door-to-door canvassing, digital ads and direct mail, Olivia Cappello, a spokesperson said in a recent interview.
The Planned Parenthood network has poured millions of dollars into voter outreach in response to the Supreme Court overturning Roe v. Wade last year. In the leadup to the decision, arms of the organization announced a $16 million ad campaign, and spent more than $50 million on the 2022 midterms a few months later.
The head of the much smaller Women’s Voices of Southwest Florida organization, who rallied against the ban in the state capital this week, has also promised an aggressive voter outreach effort.
“We have all vowed to go knock on doors and go to other states to let people know what DeSantis has done to Florida,” Sarah Parker of the organization said in an interview. “We don’t have a lot of money, but we’ll mobilize.”
DeSantis does not share that problem. A PAC supporting his likely candidacy boasted of raising $30 million several weeks ago, and he’s proven himself a prodigious fundraiser in the past — a benefit that’s helped him cement himself as the leading Republican alternative to Trump.
And for many on the right, particularly those miffed at Trump, DeSantis’ support of a six-week ban is proof that he is a more reliable ally in their fight to end the procedure nationwide.
“I’ve known him since he hit the ground in Congress,” Perkins said. “He, from the start, has been making very solid decisions on a host of policy issues, from religious freedom to economic issues.”
Florida’s six-week abortion ban received final legislative approval as the issue of abortion access once again dominates the headlines. The U.S. 5th Circuit Court of Appeals on Wednesday agreed to allow the abortion pill mifepristone to remain on the market but with restrictions that will hamper access to millions of people unless the Supreme Court intervenes.
Florida now joins at least 12 other states — including Georgia, Iowa, Kentucky and Louisiana — that have approved bans on abortions after six weeks, a point at which many people don’t yet know they’re pregnant.
“This bill is atrocious,” said Ryan Stitzlein, NARAL’s senior national political director. “This issue may ignite a small part of their primary base but it’s deeply unpopular with voters in this country. … We’re activating our more than 4 million members across the country. They’ll be making calls, writing, knocking on doors.”
Democrats’ confidence is rooted in both public polling that demonstrates little bipartisan appetite for such strict abortion bans as well as recent case studies. Five months after Republicans failed to deliver widespread victories in the midterm elections, a Democratic candidate for the Wisconsin Supreme Court defeated her opponent by 11 points in a race centered around abortion. Even moderate Republicans crossed the aisle to donate to her winning campaign.
“You should ignore national polls because that’s not how people win a presidential nomination. They win by winning each state and if you look at the bellwether states that Trump or DeSantis need to win, they have major, major problems on the issue of abortion,” political fundraiser Patrick Guarasci — who worked on the winning campaign of Wisconsin Supreme Court candidate Janet Protasiewicz — said in an interview this week. “They’re being held hostage by their donors and their far-right-wing extremists.”
Guarasci said abortion ranked as the top issue in the recent election.
“Trump or DeSantis will have a hard time winning a presidential elections without some kind of answer to that question,” he added.
Several dozen opponents have been staging demonstrations in Tallahassee, even getting arrested in acts of civil disobedience. Though they knew they stood no chance of changing the course of the bill, they continued to gather as recently as Wednesday night to denounce it. State Democratic Party Chair Nikki Fried warned DeSantis will “will not stop with Florida.”
DeSantis isn’t the only Republican who will face pressure for his stance on abortion. Democrats are certain to note that Trump appointed the justices who overturned Roe. Sen. Tim Scott (R-S.C.), on his second day of campaigning since announcing a presidential exploratory committee, pivoted, deflected and avoided specifics when repeatedly pressed on where he stood on federal abortion restrictions.
But unlike Trump or Scott, DeSantis will have signed legislation limiting access. Democrats don’t intend to let voters forget.
“This man is clearly wrong for Michigan,” Michigan Lieutenant Gov. Garlin Gilchrist, a Democrat, said on a conference call ahead of DeSantis’ recent visit to the state. “But he is also wrong for America. He will be burdened by his anti-choice, anti-woman, anti-reproductive freedom stances.”
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The Florida House approved it on a 70-40 vote on Thursday. The state Senate approved it last week.
The six-week ban will help DeSantis show conservative voters in a primary contest that he’s solidly anti-abortion, but it also carries big risks in a general election. Republicans overall underperformed during the 2022 midterm elections, in part because Democrats and swing voters turned out in response to the high court’s abortion ruling.
Florida now joins at least 12 other states — including Georgia, Iowa, Kentucky and Louisiana — that have approved bans on abortions after six weeks, a point at which many people don’t yet know they’re pregnant. The Florida legislation provides exceptions for victims of rape, incest and human trafficking up to 15 weeks as long as they provide proof such as a police report. At least 13 other states have enacted near-total bans on the procedure.
The GOP-led Legislature’s move comes almost a week after a federal judge in Texas suspended the FDA’s approval of the abortion drug mifepristone, signaling that the battle over reproductive healthcare will continue long after the Supreme Court’s decision last year to overturn the constitutional right to abortion under Roe v. Wade. Late Wednesday, a federal appeals court ruled that the pill can remain on the market but restricted its availability.
Even after DeSantis signs the bill, the new six-week ban will face an additional hurdle at the Florida Supreme Court. The state’s high court is currently weighing a challenge to last year’s 15-week ban, with plaintiffs arguing the law violates a decades-old state privacy clause that previous justices cited in upholding abortion protections. The state is enforcing the 15-week ban as the court considers the challenge.
The six-week ban, once signed into law, will not go into effect until the court rules in the case because the legislation has a trigger provision that makes it dependent on the court’s ruling.
Much like the U.S. Supreme Court, Florida’s high court is dominated by conservatives after DeSantis appointed four of the court’s seven justices. Many court watchers expect the justices to uphold the 15-week ban.
“Here in the state of Florida we care deeply about life and we care about the most vulnerable in our society – babies in the womb,” said state Rep. Jennifer Canady, a Republican from Lakeland who co-sponsored the legislation in the House.
Canady also highlighted some of the other provisions in the bill, including providing $5 million to the state Department of Health for programs that promote causes such as contraception, and $15 million for programs that support mothers who give birth.
One of the most outspoken critics of the bill was state Rep. Anna Eskamani (D-Orlando), who told lawmakers that she grew up poor and first received contraception from Planned Parenthood when she was a teenager. She said the 6-week ban would unfairly punish poor women who can’t afford to travel out of state to have an abortion after six weeks.
“I’m a firm believer that bodily autonomy should not be dictated by how much money you have or where you live,” Eskamani, who previously worked at Planned Parenthood, said. “Those with means — we’ll figure out a way, but others won’t be able to do that.”
White House Press Secretary Karine Jean-Pierre in a statement called the ban “extreme and dangerous” and said the administration “will continue to fight to protect access to abortion and defend reproductive rights.”
While House lawmakers were considering the bill, a group of abortion-rights protesters in the chamber shouted “abortion is healthcare!” before GOP Speaker Paul Renner cleared the room. Once outside the chamber, the demonstrators chanted “Hands off our bodies.”
Last year, when lawmakers voted on the 15-week ban, Capitol Police arrested a Planned Parenthood organizer on a charge of disorderly conduct and issued warnings to 25 others who were protesting. This year’s crowd appeared smaller and there were no arrests.
A handful of Florida Republicans who represent primarily Democratic areas voted against the ban but were outliers and like state Democrats, had no power to stop the GOP supermajority from approving the legislation.
House Democratic Leader Fentrice Driskell of Tampa warned that Florida’s maternal death rate would increase if the 6-week ban becomes law and added that Republicans pushed through legislation even though voters don’t want it.
“It’s an imposition of the will of the minority on the majority,” Driskell said. “Do we not listen to our constituents and the people of Florida for what they’re asking for?”
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Unless the Supreme Court intervenes, the 5th Circuit’s decision means that starting Saturday, mifepristone will remain legal at the federal level but access will be much more restricted.
Mifepristone, one of two drugs commonly used together to cause an abortion, was approved 23 years ago by the FDA for use in the first 10 weeks of pregnancy and recently became the most common method of abortion in the United States.
The 5th Circuit did not go as far as U.S. District Court Judge Matthew Kacsmaryk, whose ruling last Friday would have effectively removed the pill from shelves nationwide, but it did significantly roll back much of the FDA’s recent efforts to expand access.
The court decision cuts off — at least temporarily — many of the pathways patients have used to obtain the pill in the last few years, including telemedicine prescriptions and mail delivery, and moves the cutoff for prescriptions from the current 10 weeks of pregnancy to seven.
Should the ruling stand, retail pharmacies will no longer be authorized to dispense the drug. Physicians will not be able to prescribe the drug via telemedicine; instead, patients will have to make multiple in-person office visits to get a prescription. Additionally, non-physicians will not be able to prescribe or administer the drug, and prescribers will have to resume reporting “non-fatal adverse events” related to mifepristone to the federal government. The decision also suspends FDA approval of the company GenBioPro’s generic version of mifepristone, another blow to access.
Isn’t there another abortion pill?
Yes, misoprostol. The two pills are usually taken together to end a pregnancy during the first 10 weeks. Numerous studies have found both pills to be safe and effective.
The new restrictions set to take effect don’t apply to misoprostol, because it is subject to fewer FDA regulations as the medication is primarily prescribed for non-abortion purposes, including treatment for stomach ulcers. Misoprostol can still be used on its own to end a pregnancy and abortion providers around the country say they’ve been preparing for months to pivot to offering misoprostol-only abortions if needed. However, there is a slightly higher risk of side effects and complications when the pills are used without mifepristone. States including California and New York announced this week that they’d be stockpiling misoprostol as a way to ensure access to an alternative method of abortion.
What does the Biden administration do now?
Attorney General Merrick Garland said Thursday that the Justice Department will seek emergency relief from the Supreme Court in order “to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care.” It would take five justices to put the 5th Circuit’s decision on hold and maintain the status quo while further appeals continue, although it’s possible Justice Samuel Alito — who oversees the 5th Circuit — could issue a temporary stay while the other justices weigh in.
Can doctors use “off label” prescribing beyond seven weeks of pregnancy?
Yes, but they may be reluctant to do so. The 5th Circuit’s decision rolled back an FDA policy that had expanded the use of mifepristone for use in the first 10 weeks of pregnancy rather than just the first seven weeks. Many doctors currently prescribe the drug beyond 10 weeks as an off-label use. Under the court decision, prescribing the drug after seven weeks would now be considered off-label. Some doctors may exercise that option, but there is likely to be a chilling effect from the court’s decision, with many doctors wary of running afoul of the court order during a time of legal uncertainty.
What does this mean for people who live in states where abortion is illegal after six weeks?
Most people do not know they are pregnant before six weeks. Abortion pills, which could be ordered online and delivered through the mail, had been seen as a way for people who live in states with six-week bans to terminate their pregnancies even after six weeks. Reining in the drug’s availability is likely to dramatically diminish its usefulness in these states.
What about in blue states, where most abortions remain legal?
The decision could also hamper access in blue states that have sought to maintain access to the pills, making them harder to access both for their own residents and the wave of people traveling from red states to terminate a pregnancy.
Jennifer Dalven, the director of the ACLU’s Reproductive Freedom Project, argued to reporters Thursday that a competing district court ruling out of Washington state ordering the FDA to maintain the status quo should mean that nothing changes in the 17 states and Washington, D.C., where attorneys general sued the FDA — but without clear direction from judges and administration officials the legal status in those states remains uncertain.
“In some places, FDA is under an obligation, a court order, not to further restrict access to abortion,” she said. “But it is completely unclear right now exactly how this will play out. We really need guidance both from the Supreme Court and potentially, ultimately the FDA.”
Even if those 17 states and D.C. are shielded from the impact of the ruling for now, several of the country’s biggest states, including New York and California, are not part of the case and thus could be hit with the new restrictions ordered by the 5th Circuit.
What will the anti-abortion challengers do?
Alliance Defending Freedom, which represents the anti-abortion medical groups seeking to block access to mifepristone, told reporters on a call Thursday that it has “no immediate plans” to appeal the 5th Circuit’s decision even though the panel did not give anti-abortion groups the total suspension of the pills’ approval the groups requested and won from Kacsmaryk last week.
“For now, we’ve got a great victory in the fact that there are now three required doctor visits to make sure women are safe, and the FDA complies with the rule of law,” said Erin Hawley, ADF’s senior counsel in the case. Hawley added, however, that the plaintiffs will continue pushing to have the FDA’s original approval of mifepristone overturned.
“We anticipate that we might be able to persuade the 5th Circuit on a fuller briefing that the 2000 ruling is in play,” she said, noting that the appeals court did not take issue with the core of their arguments that the FDA approved the pills without adequately studying their safety risks and only took issue with the timeliness of the challenge to a decision the agency made 23 years ago.
Josh Gerstein contributed to this report.
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By Thursday morning in New Hampshire, Scott said he did believe some type of federal restriction should be implemented, and said if president, he would “definitely” sign into law a 20-week ban — a measure he has supported in the Senate.
“We have to have a federal limit on how far we can go, and that is something that we have to discuss,” Scott said in a local television interview in Manchester.
Pressed later on the issue outside the Red Arrow Diner in Manchester, Scott deflected — accusing Democrats of hypocrisy and raising objections to Treasury Secretary Janet Yellen suggesting that abortions could increase the African American workforce. He did not elaborate on how far the federal government should go to restrict abortions.
Scott is expected to hinge a potential presidential campaign on his Christian faith and court the evangelical vote — a voting bloc that overwhelmingly opposes abortion rights. But his answers over the past 24 hours suggest that he believes Republicans have done themselves no electoral favors by celebrating recent abortion restrictions and calling for sweeping national bans.
But by the standards of many in the GOP — and as red states around the country have passed six-week and even total bans — the 20-week ban that Scott said he would sign does not go far enough. Scott’s reluctance to weigh in on earlier, more restrictive bans illustrates the fine line he and other Republican White House hopefuls must walk. Former South Carolina Governor Nikki Haley has similarly avoided providing specifics about her position on a national ban, while former President Donald Trump has suggested that Republicans suffered electorally by not embracing exceptions to their abortion ban bills.
Scott in 2021 co-sponsored the Pain-Capable Unborn Child Protection Act, a bill that proposed jailing doctors for up to five years for performing abortions after 20 weeks of pregnancy. Speaking to reporters on Thursday, Scott did not directly answer a question about whether he agreed with prosecuting doctors who did so. He has, however, condemned a bill introduced in the South Carolina legislature that could impose the death penalty on women receiving abortions.
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You could say the Republican fight or flight instinct is kicking in, except it’s none of the former and all of the latter.
It’s like the nature show set in the Serengeti when all the gazelle sense lions in the vicinity and freeze in place, their heads in the air on high alert, waiting to make their next move — but pretty certain someone’s getting taken down, no matter what direction they run.
Much of what has happened since Dobbs is what you’d expect after a longstanding national legal regime on abortion is lifted and the states are given the freedom to decide their own policies. There has been a sorting out toward a new political and policy equilibrium, with red and blue states occupying different poles of the spectrum, and purple states up for grabs.
The good news for Republicans is that there are more restrictions on abortion in place than at any time in the last 50 years, and they still took a majority in the House in last year’s midterms, if smaller than expected.
There is broad sentiment for more restrictions than existed under Roe, but location and specifics matter immensely.
In Indiana and in much of the South, Republicans have passed sweeping abortion bans and paid no discernible political price for it.
In Georgia, Republican Gov. Brian Kemp signed a six-week ban on abortion in 2019. It went into effect after the Supreme Court overturned Roe, and Kemp won reelection handily in a race where the Democrat, Stacey Abrams, made abortion a major issue. In Texas, the details differ, but the story is much the same. The GOP-controlled Florida House takes up a six-week abortion ban on Thursday that Gov. Ron DeSantis is expected to sign after it’s passed.
But especially in Michigan and Wisconsin, the issue has been a debacle for the party, and it has suffered notable losses elsewhere, with perhaps more in the offing.
One lesson should be that Republicans can’t just run and hide on an issue that has been of defining importance to their base and that Democrats are going to hammer them on regardless of how they try to minimize it.
Another is that outside of the Deep South, complete bans can’t be defended politically, and the traditional exceptions for rape, incest and life of the mother are essential; polling for anti-abortion groups shows that even Republicans and conservatives don’t support prohibitions without the exceptions, which account for a tiny proportion of abortions.
What is required is a meeting somewhere in the middle between an anti-abortion movement that has to embrace incremental change and a Republican establishment that has to be willing to fight.
The Michigan and Wisconsin disasters stemmed from statutes that no one would have written in the post-Dobbs environment. Michigan had a 1931 law still on the books, and Wisconsin’s dated from 1849. These complete bans with narrow exceptions went too far for these purple or blue states, and Republicans were inevitably going to get hurt by their association with them.
In Kansas last year, a ballot measure that said the state’s constitution “does not create or secure a right to abortion” went down to a stinging defeat — the vagueness of the proposal allowed opponents to fill in the picture by arguing it would clear the way for a total ban.
Republicans should be pushing for restrictions that go as far as a state’s voters are willing to accept, and no further, while being absolutely clear about the details. This will require keen political judgment and shrewd tactics, both of which are hard to muster in the midst of a panic.
The other obvious imperative for the GOP is to try to focus attention on the extremism of the Democratic maximalist position on abortion, which is out of step with public opinion (Gallup finds that only 35 percent of people say abortion should be legal with no restrictions). Republican candidates who emerged unscathed on the issue last year had some success in flipping the script this way.
In the current controversy over the abortion pill, that means hitting the Biden administration for attempting an end run around an 1873 law prohibiting the use of the mail to deliver an “instrument, substance, drug, medicine, or thing” that could be used in an abortion, as a way to undermine abortion restrictions in red states.
While the Republican record fighting ballot measures to guarantee access to abortion is dreadful in the post-Dobbs era — they’ve lost everywhere — they are going to have to do more of it. Emboldened Democrats are getting referenda on the ballot in a number of red states over the next two years. A signature battle will be a vote to write abortion rights into the state constitution in Ohio later this year. If opponents defeat the measure, it will be on the strength of arguments that the amendment will end up making parental consent laws impossible and go further than the pre-Dobbs abortion regime.
Make no mistake: In many places, Republicans are simply seeking to neutralize the Democratic political advantage on the issue and fight to a draw. If this is unsatisfying and discomfiting, it’s still better than the pre-Dobbs context when the politics were easier but it was impossible to get any meaningful restrictions done. Yes, it would have been better if Republicans had spent a little more time during the prior half-century contemplating what they’d do if Roe fell, but here we are.
If there’s one thing that should be clear, it’s that fear — no matter how natural or visceral — is no substitute for careful thought and considered action.
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“We were careful to create a narrative early on about who Janet was, what was at stake in this election and who Dan Kelly was, and abortion fit within that,” Guarasci said. “Our paid media ends with ‘he’s an extremist that doesn’t care about us.’ Everything related back to that.”
The insights from Protasiewicz’s campaign team offers a note of caution — and a roadmap — to Democrats who think abortion has transformed the electoral landscape in their favor. Broadly speaking, the issue plays in their favor, but the experience in Wisconsin suggests that it will take a nuanced strategy to fully reap the political benefits.
Protasiewicz’s team clearly believed it had the right formula to make abortion work as an issue after their 11-point, 200,000-plus-vote win.
Over 35 percent of general election TV spots from her and her allies mentioned the topic, according to data provided to POLITICO by the ad tracking firm AdImpact. But it wasn’t a “one-size-fits-all message” on abortion rights, Nuckels said. Their messaging on abortion rights played into the larger campaign strategy of painting their opponent, conservative former state Supreme Court Justice Dan Kelly, as an extremist more broadly.
Focusing on abortion was a message that “encouraged turnout and persuaded voters, particularly suburban voters,” in regions like Madison, Milwaukee and La Crosse, he said.
But, notably, the reaction was regional. “In Green Bay,” said Nuckels, “it wasn’t a factor there.” In fact, he said, the campaign believed a broad advertising push on abortion in and around Green Bay would motivate more people to vote for Kelly over Protasiewicz. The campaign did not run a single broadcast television spot on abortion in the Green Bay media market.
“We didn’t want to drive out voters for our opponent or solidify them behind him,” Nuckels said. “We needed to have much more targeted communication in places like Green Bay.”
Instead, the campaign relied on targeted cable and satellite ads, along with digital and social media, to reach the most pro-abortion rights voters residing in the Green Bay market, an area that is still heavily Republican and remains key in any Republican turnout machine. According to data compiled by Daily Kos, Trump won over 57 percent of the vote in that market in 2020 — and Kelly won by a smaller margin, taking 53 percent of the vote.
Protasiewicz’s team also attributed its success to a strategy to advertise early in a race where the two candidates started with fairly low name identification; “Define early, don’t play defense, be aggressive,” as Guarasci put it.
They were able to adopt that aggressive posture in large part because they had a war chest that was basically unheard of for a down ballot statewide election. The campaign spent $15 million on TV ads alone, an unprecedented amount for a judicial race, and the campaign and state party combined to spend over $600,000 just on research efforts.
The campaign made an effort to reach voters beyond Democratic diehards. Guarasci said it was important to reach all voters where they were, from expansive broadcast buys to even advertising on conservative radio to — in part — needle Kelly. That also meant moving off of abortion when needed. Protasiewicz’s campaign talked about crime and public safety early and often.
In fact, crime was the top issue that Protasiewicz and her allies mentioned in TV ads, according to AdImpact data. Over 60 percent of total TV ads from her camp were about crime. Until recently, Republicans have viewed the issue as a key advantage they have over Democrats.
“For us, abortion was the single largest driving factor for most of the state. For the Republicans, for Dan Kelly, it was crime,” Nuckels said. “And so part of our early strategy was not to give Dan Kelly a free ride on public safety and crime.”
Protasiewicz was attacked relentlessly by Republicans on the issue — over 90 percent of their ads mentioned crime, often targeting her as a soft on crime jurist who gave too lenient sentences — but aides say their early advertising start helped inoculate her.
Her ads often highlighted her history as a prosecutor and a judge, saying she knows what it takes to keep a community safe. Her campaign also attacked Kelly for never overseeing a criminal case and for some clients he defended as a private attorney.
“A top line for me is do not cede public safety,” Guarasci said. “We knew that they were going to try to run up the score on that point, and if we could kind of neutralize it or not lose that issue overwhelmingly, we knew that people would hear us on abortion and all these other issues.”
The advice that Protasiewicz team gave to Democrats heading into 2024 was, ultimately, not to be afraid to go after Republicans as too extreme — and not just on abortion. Democrats win, they said, when they establish an overarching media strategy about tying the campaign to a fight against extremism.
“The extremism of the right is rejected by American voters writ large,” said Guarasci. “Don’t be afraid to point out this and label it an extremist agenda.”
The campaign also benefited, they said, from having the airwaves to themselves early in the general election. Kelly’s campaign was absent on the airwaves in the early goings of the general election, while Protasiewicz went up almost immediately.
That is not an advantage most Democrats will have in 2024. While this year’s state Supreme Court race had over $45 million of spending — the most for any judicial race in American history — that amount of money will be a small drop in the bucket next year.
Still, Protasiewicz’s aides said, there are valuable lessons for Democrats here.
“It’s what the electorate wanted. They wanted normalcy, they wanted common sense,” Verdin said.
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( With inputs from : www.politico.com )
“The only thing red in our district is our sun burns,” said state Sen. Alexis Calatayud, a Miami-area Republican who voted against the abortion bill last week when the full Senate approved it.
Calatayud said she voted against the measure because thousands of her constituents in the blue stronghold of Miami don’t support such a restrictive law. Despite being a Republican, she’s still beholden to the will of the voters.
Republicans hold supermajorities in the Florida Legislature, so the few GOP lawmakers who reject the measure have no power to stop or even slow its passage. But their opposition shows how abortion remains a tough issue for the party, especially after Republicans nationally underperformed in the 2022 midterms in part because the Supreme Court ruling overturning Roe v. Wade energized Democratic and swing voters.
That dynamic was much different in Florida, however, Republicans picked up seven new GOP members in the state House and four in the Senate. DeSantis also won the state by historic margins, even in traditionally Democratic areas like Miami.
When Florida lawmakers last year passed a 15-week ban on abortions that offers no exceptions for victims of rape and incest, only one Republican, state Rep. Rene “Coach P” Plasencia of Orlando, voted against it. He later resigned a few months before he was term-limited out of office.
House Democratic Leader Fentrice Driskell (D-Tampa) said the difference this year is that more Republicans are realizing the consequences of the six-week ban, which does have exceptions for victims of rape, incest and human trafficking up to 15 weeks of pregnancy.
“They know and understand, like we do, that at six weeks most women don’t even know they’re pregnant,” Driskell said. “This is effectively an outright ban.”
At least 12 other states have enacted six-week bans, including neighboring Georgia. The Florida bill, once DeSantis signs it into law, will effectively end the state’s reputation as a safe haven for people seeking abortions in the South. Since the Supreme Court struck down Roe last year, at least 4,000 people have traveled to Florida to get abortions from as far away as Texas and Alabama, where abortion is prohibited at any stage of pregnancy.
In addition to its exceptions, the six-week ban includes a provision that would give $5 million to the state Department of Health for programs that promote causes such as contraception, and $15 million for programs that support mothers who give birth.
Republican state Rep. Mike Caruso of Delray Beach told POLITICO he will vote “no” Thursday on the six-week ban, while GOP Rep. Traci Koster of Tampa previously rejected the bill during a March committee vote. She did not respond to requests for comment this week.
“I don’t think the bill takes into consideration certain religious rights,” Caruso said on Wednesday. “And based on that, and some other things, I’m going to be down on the bill.”
Several faith-based groups filed legal challenges last year against the state’s 15-week abortion ban, arguing that it violates the constitutional right to freedom of speech and religion, among other things.
“I do not like this bill,” Caruso said.
The Republicans who vote against it, however, are unlikely to face any blowback from their caucus. The vast majority of the 84 House Republicans are expected to vote for the six-week ban, and Florida GOP Speaker Paul Renner told reporters on Wednesday that some Republicans in Democratic districts must still represent their constituents.
“We have members who will likely not be able to support the bill because they are a good representative of their district. And that’s not where their district is.” Renner said. “We respect those differences in our caucus.”
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( With inputs from : www.politico.com )
The move, a longtime ask of abortion-rights advocates and Democratic lawmakers, comes just days after a Texas court ruling threatening access to the abortion pill — the most common method for ending a pregnancy. Vice President Kamala Harris will meet Wednesday afternoon with the White House’s Task Force on Reproductive Health Care Access to discuss the new HIPAA rule and other potential responses to the court decision.
During a call with reporters on the new rule Tuesday night, a senior administration official said that while the agency released guidance when Roe fell last June telling doctors they do not have to comply with demands for information from law enforcement or state officials about a patient’s abortion, they have gotten feedback from health providers and advocacy groups that a clearer and more binding rule would offer better protection.
“We found that even with the permissible disclosures [policy], some providers get fearful when they receive a subpoena or they might feel like they have to turn the information over,” said the official, granted anonymity as the condition for the briefing on the new rule.
That chilling effect, the official added, is also affecting pregnant patients and causing them to avoid the medical system entirely.
“They’re scared, they are concerned about their medical information being misused and disclosed,” the official said. “As a result, individuals may hesitate to interact with providers, health plans, pharmacies or related health applications out of fear that their data will be tracked or shared inappropriately.”
The agency will take public comment on the proposed rule for the next 60 days, and will then issue a final rule.
Democratic lawmakers and abortion-rights advocates have been pleading with the Biden administration for months — beginning before Roe was overturned — to take this step, and the calls have grown louder as conservative states ramped up enforcement of their anti-abortion laws.
In January, Democrats in Congress introduced the Secure Access for Essential Reproductive (SAFER) Health Act that would have made similar updates to HIPAA with respect to abortions and miscarriages, but the bill has not moved in either chamber.
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( With inputs from : www.politico.com )
