A pro-life protester stands outside the U.S. Supreme Court before rulings in Washington, D.C., U.S. (Photographer: Andrew Harrer/Bloomberg)

Abortion Debate Reignited as Divisive Issue for 2020 Campaigns

(Bloomberg) -- The acrimonious debate over abortion that’s divided the country for generations is being reignited for the 2020 election with the Supreme Court’s tilt to the right and Democratic-led states moving to lift some restrictions on the procedure.

New York has eased some restrictions on late-term abortions, and lawmakers in Virginia have proposed to do so. That has given anti-abortion advocates fresh arguments and targets. Both sides in the debate, at the same time, expect the Supreme Court with two conservative justices appointed by President Donald Trump to narrow abortion rights.

“This sudden, kind of unexpected controversy over late-term abortion really only increases the chances that we will see a Supreme Court that is favorable to the pro-life cause over time, because I think this is something so shocking to most people,” Eric Scheidler, head of the Pro-life Action League, said. “It’s going to make it harder for pro-life voters of any kind, regardless of whether they’re Republican or Democrat, to want to support somebody who’s going to uphold that sort of thing.”

Abortion has been a defining issue for both parties and it’s a motivator for voters. Trump’s embrace of strict limits on abortion in the 2016 campaign, despite calling himself “pro-choice” in the past, was essential to his locking up evangelical and other conservatives. With his approval rating stuck at around 40 percent, he’ll need those voters on his side to get re-elected.

“The direction of the Supreme Court on the abortion issue in particular remains important in electoral politics for next year. I think that only helps President Trump,” Scheidler said.

Call for Legislation

In his State of the Union address on Tuesday, which outlined some of the themes he’s likely to use in the 2020 campaign, Trump called on Congress to act.

“To defend the dignity of every person, I am asking the Congress to pass legislation to prohibit the late-term abortion of children who can feel pain in the mother’s womb,” he said. Trump returned to the subject at Thursday’s National Prayer Breakfast, saying that, “we must build a culture that cherishes the dignity and sanctity of innocent human life.”

Democrats in the new House majority and in state legislatures list reproductive rights as one of their top priorities, setting up a clash between lawmakers who say they’re protecting unborn infants and those who would focus legislation on a mother’s health and safety.

Public Viewpoint

American public opinion on abortion is complicated and presents challenges for both parties. Surveys say most Americans oppose outlawing abortion. Yet the country also favors limits on late-term abortion.

A Gallup poll in May 2018 found that just 18 percent of Americans want it to be illegal in all situations. Meanwhile, 29 percent of Americans want abortion to be legal in all circumstances, while 50 percent want it to be legal in some circumstances.

The current debate is focused on what, if any, restrictions should be placed on terminating pregnancies later in the gestation period. Conservative talk radio has lit up with outrage over the legislation in New York and Virginia.

Scheidler said he was less dismayed by the New York law, which wouldn’t materially change abortion practices in the state, than by the political celebrations that followed, along with the symbolism of Governor Andrew Cuomo signing the bill on the anniversary of Roe v. Wade.

Virginia Legislation

Virginia Democrats have come under fire for an abortion bill, which was tabled in committee, that would ease some requirements for performing late-term abortions.

Much of the conservative outrage focused on Democratic Governor Ralph Northam’s remarks in a radio interview about cases where a fetus was not viable or had severe deformities. Northam, a physician, said the infant would be delivered, and “kept comfortable,” giving the mother and father the option to discuss with physicians whether the baby should be resuscitated.

Though Northam’s office said he was talking about prognosis and medical treatment, Republicans cast it as “infanticide.”

“To hear it described by the governor of Virginia, in the way he described it, was grisly and alarming I think to most people and it woke a sleeping giant,” Representative Steve Scalise of Louisiana, the second-ranking House Republican, told reporters.

Rare Procedure

Late-term abortion is rare. Just 1.3 percent of abortions were performed after 20 weeks of gestation in 2015, according to the Centers for Disease Control and Prevention. The same year, 91.1 percent were conducted by the 13th week.

House and Senate Republicans have introduced federal legislation that would require medical care for any infant born alive, even after an unsuccessful abortion. These cases are even more rare, leading some opponents to argue that legislating how physicians should respond risks jeopardizing the mother’s health.

The Supreme Court, where much of the battle over abortion is fought, left its direction unclear Thursday. The court temporarily blocked a Louisiana law that would require doctors who perform abortions in the state to get admitting privileges at a local hospital. Opponents of the law say it would have closed down two of the state’s three remaining clinics where the procedure is performed.

The action isn’t likely to be the court’s final action on the law. The court could take up an appeal during its next term, potentially putting a decision into the midst of the 2020 campaign for the White House and Congress.

Ilyse Hogue, the president of the abortion-rights advocacy group Naral, said the 5-4 decision by Chief Justice John Roberts and the four liberal-leaning justices merely hewed to precedent by rejecting an appeal aimed at “making Roe v. Wade obsolete.”

The ruling “illustrates a sobering reminder: the thread that women’s rights hang by is dangerously thin in so many places across the country,” Hogue said, vowing that her group will fight threats to abortion in state legislatures and courts.

One of the four justices who voted to let the anti-abortion law take effect was Trump appointee Brett Kavanaugh, which caught the attention of liberals.

The liberal judicial advocacy group Demand Justice said it would run digital ads in Maine to criticize Republican Senator Susan Collins, who faces re-election in 2020, for voting for Kavanaugh on the grounds that she didn’t believe he’d vote to undo abortion rights.

The group’s executive director Brian Fallon, who has sought to make the courts a voting issue for the left, slammed Kavanaugh’s vote as a “judicial activist decision” that shows his eagerness to gut Roe. He said it’s a mistake to trust Roberts on abortion because of the decision, arguing that the chief justice may still vote to uphold the restrictive law on the merits, as he has done with a similar measure in the past.

“Roberts’s long-term goal is definitely to erode if not outright gut Roe. Last night’s decision was probably just a strategic gambit on his part but it’s part of a larger plan to undo Roe,” Fallon said. “He’s going to be crafty in how he goes about it.”

©2019 Bloomberg L.P.