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Dobbs and Zeynep's Law
The secret to winning is actually winning.
There is a theory—prevalent on both Right and Left—that pro-lifers should not want to actually win Dobbs v. Jackson (the Supreme Court case that could finally reverse Roe/Casey), because their victory will inspire an almighty backlash that results in abortion enthusiasm, a blue wave, court-packing, and federal pro-abortion laws. According to this theory, pro-lifers need to change more hearts and minds before actually toppling Roe, or their fleeting victory will backfire into final defeat. I’ve encountered this theory in conversation with enough people (including more than one De Civ reader) that I think my reply bears sharing more widely.
Several times in the pandemic, Public Health™ has made similar arguments. For example, we shouldn’t encourage people to wear masks, because they’ll just get overconfident and engage in riskier behaviors. Or: the CDC shouldn’t expedite vaccine approval to save a hundred thousand lives in winter 2020, because if there are any problems people will lose confidence in the CDC and it won’t be able to save even more lives later on. This led one of the best pandemic science journalists, Zeynep Tufecki,1 to coin a new rule:
She’s right. Masks do not “backfire” and lead to “overconfidence” any more than seat belts cause car accidents. We know this now in 2022… but the available evidence strongly favored it even in 2020. The “backfire” argument boiled down to wild speculation, a certain degree of midwit smugness,2 and plain old natural human fear that we might try something and fail.
Likewise, we should assume that, when we have a legal case where the Supreme Court will either uphold protections for the unborn or strike them down, winning is better than losing.
The evidence that winning > losing is, in this case, quite strong:
Pro-lifers have (for decades) been measurably more devoted to the issue at the ballot box than their counterparts on the other side. This sometimes wavers when pro-lifers in general are depressed (e.g. Romney 2012), but it’s a consistent rule-of-thumb in politics that pro-lifers show the hell up. Pro-choicers are not as intensely pro-choice as pro-lifers, and may prioritize other issues. This has been a political law for long enough that we should demand quite a lot of evidence before reversing our expectation.
Sometimes, after a political coalition scores a major, binding victory, it de-mobilizes, rests on its laurels a bit, and the opposition has a chance to strike back. (We saw this after the passage of Obamacare.) However, since Dobbs will, at best, send abortion policy back to the states for fifty state legislative battles, the pro-life movement is (if anything) gearing up right now, not de-mobilizing. Dobbs is not our Obergefell. It’s the long-delayed beginning of our national abortion debate, not its end.
The pro-choice coalition is not measurably larger than the pro-life coalition. Although most Americans say they want the Supreme Court to uphold Roe v. Wade, it is clear that most Americans have no idea what Roe v. Wade says, because most Americans also support a wide range of abortion bans that clearly violate Roe v. Wade (including the one at stake in Dobbs!). Self-identification as pro-life or pro-choice wobbles with the political winds… but, when it comes down to it, the evidence of the past 50 years says that the American abortion wars basically come down to ~20-30% of the population who want to ban abortion (with narrow or no exceptions), ~20-30% who want to guarantee abortion is legal up to the moment of birth, and ~50% of Americans who would really rather not think about it and can we please just argue about taxes and jobs instead.
We have put all this to the test! The 2021 elections in New Jersey and Virginia took place after Texas’s S.B.8 effectively ended Roe/Casey in Texas, a front-page national news story. Incumbent Virginia Democratic governor Terry McAuliffe specifically tried to make abortion an election issue. (Incumbent New Jersey Democratic governor Phil Murphy did not.)
S.B.8 did not even blunt Republicans’ momentum. In Virginia, the result was a 12-point swing from the 2020 results, in Republicans’ favor. McAuliffe narrowly lost his job in a state that most commentators considered safely blue. In New Jersey, the result was a 13-point swing toward Republicans from the 2020 results (not quite enough to dislodge Gov. Murphy). Abortion had no clear effect whatsoever. The red wave swept both state capitols anyway.
“But S.B.8 was only one far-off red state! If Roe falls, it affects the entire nation equally!” Nope. Under S.B.8, a single state attempted to set its own abortion policy (and succeeded). If Roe/Casey falls, every state will get to set its own abortion policy. There is no plausible way for a ruling in Dobbs to threaten popular pro-abortion policies in pro-choice states like Virginia, New Jersey, New Hampshire, Pennsylvania, Colorado, or any of the other 2022 battlegrounds.
Dobbs will have the same impact on those voters that S.B.8 did… and 2021 taught us that those voters didn’t care about S.B.8. Maybe Dobbs will play out differently, for some reason? But the evidence we have so far suggests that, no, abortion bans in other parts of the country don’t endanger Republican prospects in states where pro-choicers have an edge.
Meanwhile, in battleground states where pro-lifers have an edge—states like Georgia, Arizona, Wisconsin, Iowa—any pro-choice backlash is at least somewhat likely to be outweighed by pro-life… frontlash? Is that a word?
Suppose I am completely, utterly wrong about all of the above. Suppose there’s a huge pro-choice backlash against Dobbs, despite the evidence so far, and it’s a big backlash. Democrats get a 5% swing, a bigger swing than any caused so far by covid, Afghanistan, or the inflation crisis.
So what? The national environment appears to favor Republicans by something like 9-12 points. Take 5 points off of that, and Republicans still have a good midterm, winning by 4 points, and taking control of both House and (likely) the Senate.
Suppose I’m wrong about that, too. Suppose the Democrats not only generate a vast pro-choice backlash ex nihilo, but also manage to defeat the huge political headwinds they’re facing from inflation and covid and so forth. They end up comfortably winning the midterm election, holding the House and even adding a seat in the Senate, like the Republicans after 9/11. This would be an extraordinary, historic performance in a midterm election.
Again, so what? That gets Dems to 51 Senate seats, but, with Manchin and Sinema around, they need a minimum of 52 to break the filibuster (probably more, if it comes down to it). Even if they do break the filibuster, they absolutely don’t have the votes for court-packing, and they’ll have to talk Sen. Bob Casey into voting for a federal abortion-rights law he opposes. They’ll then have to run the gamut of pro-lifers tying federal Democrats to every barbarian horror, from partial-birth abortion to selling baby parts. Even if an abortion-rights law does pass, it would likely be an unconstitutional violation of the Commerce Clause, and the current textualist Supreme Court is likely to strike it down.
So, even if Democrats win in 2022, their prospects for reinstating Roe v. Wade are vanishingly small.
Even if every single word above is somehow completely wrong, reinstating Roe (through legislation and/or court-packing) would still take a minimum of eighteen months after a favorable decision in Dobbs. (Assuming court-packing doesn’t dissolve the Union all by itself.) That’s a very long time for Americans to see what a pro-life America might look like—and to realize that the pro-choice movement’s lies about back-alley abortions and mothers’ safety have always been just that.
I think we should prepare for the reality: if the Right To Life wins in Dobbs, there’s very little the other side will be able to do about it.
I can’t overstate how lucky3 it is that Dobbs is coming down the barrel of a midterm election where the Republicans are out of power, but just barely out of power. I know it never feels “lucky” to lose a presidential election, like pro-lifers did in 2020, but if we assume that you have to lose some presidential elections, the 2020 loss was very well-timed.
There’s pretty much always a strong backlash against the president’s party in the midterms. We saw in 2018 the kind of midterm backlash President Trump received, even though things were actually going pretty good! Now imagine the backlash against Trump in a world with covid and inflation. I shudder to think what would happen in 2022 if the Republicans were the ones in the White House. 2022 could have turned into a real slaughterhouse for pro-life officials, especially if an anti-Dobbs backlash materialized. That could have set Democrats up to win not just the White House in 2024, but a filibuster-proof progressive majority to go with it.
Instead, Democrats are the ones facing the backlash. Abortion simply doesn’t matter enough to most Americans for their muddled opinions about Roe to overcome their frustration with inflation, school closures, and wokeism. That, combined with the Democrats’ current rural disadvantage, threatens to lock them out of power for perhaps the rest of the decade. Because pro-lifers lost in 2020 (barely), 2022 is the safest political moment for a case like Dobbs in at least twenty years.
While the potential costs to winning Dobbs are low, the potential benefits are very high. Consider:
The pro-life movement has scored many victories for a very long time by subjecting abortion procedures to various regulations, from informed consent rules to clinic safety laws to waiting periods. However, these victories all depended on the assumption that abortions took place in a medical clinic and were performed by doctors who feared losing their licenses. That assumption is starting to falter. The rise of at-home abortion-by-pill is making it more difficult to impose binding, enforceable rules that protect unborn children (or their mothers). To effectively protect against these kinds of abortion, the pro-life legal movement is going to need to be able to pass more robust laws, along the lines of what the gun-control movement has achieved. We can’t do that under Roe/Casey.4
While anti-abortion policy victories have been consistent for the past several decades (and have contributed to a slow, steady fall in the abortion rate), abortion attitudes have been pretty static. One of the few things that can actually reshape public polling on an issue is a Supreme Court ruling about it. People tend to underestimate this effect, but the law is a teacher. Support for same-sex marriage measurably jumped after Obergefell v. Hodges, especially among Republicans and Independents. I’m optimistic that a Supreme Court decree that abortion is not a human right will measurably increase the number of Americans who agree. At the start of this post, our pessimists argued that the Supreme Court shouldn’t rule against Roe/Casey until we’ve won enough hearts and minds. But there’s a decent case to be made that the best way for us to win hearts and minds is for the Supreme Court to rule against Roe/Casey!
In many states, we’ve hit something of a policy ceiling. Pro-lifers have implemented every protection for the unborn they can think of that doesn’t violate Roe/Casey. Pro-lifers are breathtakingly creative… but we are entering an era of diminishing returns, as long as Roe/Casey are on the books. We already have enough hearts and minds (and state legislative votes) to ban abortion across much of red America. The only thing standing in the way is the Supreme Court’s anti-constitutional abortion rulings. The time has come.
To my mind, the biggest reason so many Americans remains skeptical of abortion restrictions and abortion bans is because they can’t imagine a world without legal abortion. Or, worse, they can imagine a world without legal abortion, but the world they imagine the lurid lie the pro-abortion movement sold back in the 1970s. Many people sincerely believe the empirically false5 claim that “Banning abortions doesn’t stop abortions; it only stops safe abortions.”6
The next step in winning the fight for full personhood is demonstrating to the world that an abortion-free society is both possible and beautiful… that it’s good for babies and good for mothers. The Left will not make this easy. They will scour the pro-life states for Savitas while ignoring their own Gosnells. They will grill our legislators about popular rape exceptions while failing to notice their legislators’ enthusiasm for unpopular late-term abortions. We will only beat them by being better than them in every way, from political smarts to personal charity.
But, today, we can’t even try, because the Supreme Court won’t let any of our “laboratories of democracy” enact a democratic anti-abortion policy. Once Dobbs falls, that can change.
Naturally, the blue states that don’t recognize fetal personhood today will continue not recognizing personhood the day after Dobbs, even if we win. But, as President Lincoln once said about slavery:
A house divided against itself cannot stand. I believe this government cannot endure, permanently half-slave and half-free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing, or all the other.
Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in course of ultimate extinction; or its advocates will push it forward till it shall become alike lawful in all the States, old as well as new—North as well as South.
For fifty years, we in the United States have been all one thing: abortuaries. The fall of Roe/Casey would make us half-free (while the other half would languish in barbarism for a time). But this state of affairs could not, I think, persist forever. The Union has been all one thing. I think, eventually, it will become all the other. But that process cannot even begin until Roe/Casey are overturned.
That’s why, over the long term, the fall of Roe/Casey may well be the most consequential American policy change since the fall of Dred Scott… and why I am not really worried about any short-term political consequences.
Don’t be afraid of winning, gang. Cheer for a win. Pray for a win. (I’m way more scared of John Roberts than I am of the Democrats.) Yes, even if we win, we might then fail, like the Irish pro-life movement did after Amendment 8 passed. Yes, we are right to be scared of that. But we are smart, we are good, and we are many. We have the truth (and the One Who Is Truth) on our side. We love both mothers and their children, while the other side pretends to love only one, and truly loves neither.
All we need from Dobbs is what we’ve sought for fifty years: a chance to do the right thing.
If ten actual professional epidemiologists say one thing, and Zeynep says the opposite, trust Zeynep. History tells us that the epidemiologists will eventually admit they were wrong.
No judgment. Let him who is without sin…
If this works out as I hope, forget “lucky” and just call it “providential.”
I won’t dwell on the irony that gun-controllers have been able to pass more robust restrictions on guns than pro-lifers have on abortion, even though gun control is expressly limited by the Second Amendment of the U.S. Constitution, while the only plausible reference to abortion in the Constitution is a passage in the Fourteenth Amendment that seems to protect unborn children.
Someday, I should write a full blog post about this, but, for now, this will have to do.
UPDATE 2:20 PM: that link apparently only works for me. The moderators of /r/science—showcasing that classic reddit spirit of fairness, open-mindedness, and free inquiry (/s /s /s /s /s)—appear to have shadowbanned me for writing this comment. Here is the full text of the now-invisible comment:
(PARENT POST: “Yeah, generally laws against abortions don't lower the number of abortions, they just increase maternal mortality.”)
ME: Laws against abortion do lower the number of abortions, if you control for poverty.
Of course, the Guttmacher Institute, which both authors most of the studies on this and has a sizable financial and ideological stake in abortion access, does not typically control for poverty. Which leads to the publication of studies saying, "Hey, El Salvador banned abortion and they have a high maternal mortality rate, but Germany legalized abortion and they have a low maternal mortality rate!" Yeah, no shit, Sherlock.
But there's a clear positive correlation between state-level abortion restrictions and lower total abortion numbers in the United States, the same thing played out in Eastern Europe after the fall of communism (a lovely natural experiment in the effects of abortion prohibition/liberalization in countries in similar economic straits), and the great first-world experiment in abortion prohibition -- the Republic of Ireland, 1983-2018 -- successfully combined extremely low maternal mortality with incredibly low abortion rates, even after accounting for "abortion tourism" to the U.K.. Even Guttmacher was forced to admit that the American Hyde Amendment (a restriction on federal abortion funding in Medicaid) goes a long way toward reducing the abortion rate.
This shouldn't surprise anyone. When the government bans something, whether it's speeding or slavery or internet piracy or child pornography, you invariably get less of it. Sometimes only a little less, sometimes a lot less -- depends on the severity of the penalty, the degree to which the law is enforced, and the ease of enforcing it. Yet our friends at the Alan Guttmacher Institute want us to believe that, for abortion and abortion alone, the vast police powers of the State have zero impact.
It's absurd on its face, but it's an incredibly convenient thing for people to believe, so Guttmacher gets its audience.
UPDATE [3 March 2022]: One of this blog’s readers reached out to the /r/science moderators to ask for an explanation of that shadowban. In response, the moderators un-shadowbanned it. So the link should work now. Thanks, Colin!
Even before you look at the empirical evidence, this is a pretty obviously insane claim. You will notice that laws banning rape do not stop 100% of rapes. Nevertheless, we have plenty of laws banning rape, because banning rape actually does greatly reduce the amount of rape that occurs! Laws against violence are good, actually!
This may be another example of Zeynep’s Law at work.