Ruth Bader Ginsburg's death means prochoicers have a fight on their hands
The death of Ruth Bader Ginsburg raises the immediate question of whether or not President Trump will be able to successfully install a new supreme court justice before the election, or be thwarted.
There are electoral benefits to him in either case: he gets his replacement through – among the names touted are Amy Coney Barrett and Barbara Lagoa, both candidates representing a further lurch to the right – or his failure to do so motivates his base.
Either way, it makes the 2020 election, among many other things, into a referendum on abortion. Trump’s explicit promise in 2016 was that any supreme court judge he nominated would “automatically” overturn Roe v Wade. Four years ago, that statement was a box-ticking exercise; to oppose abortion as a Republican candidate is a minimum entry requirement, not a campaign slogan.
Reproductive rights are the gift that keeps on giving in the culture war; the issue is not resolvable by persuasion, negotiation or compromise. Yet the less-often told story of this Gordian knot is that, sooner or later, people just get bored of it. That’s been the story of abortion over the past decade – both sides have remained implacable, while every now and again a Republican candidate has tried to make his name with some absurd new iteration (of which my favourite was Todd Akin, claiming that it was almost impossible for a rape victim to get pregnant, because “the female body has ways to try to shut that whole thing down”), but the debate lacked the novelty and edge to make it as a central campaigning issue.
That has now changed. When the
entire fertile population of the US has a question mark over its self-determination, nobody could say the issue lacks edge.
Superficially, this looks like an advantage for Donald Trump. He is rock-solid on his views, where Joe Biden’s are more of a truce between his faith and his politics (“I’m prepared to accept for me, personally, doctrine of my church [on when life begins] … but I’m not prepared to impose that on every other person,” he said, in what would have been a deft formulation a thousand years ago, but was not very 2019).
More of Trump’s supporters have this as a “very important” factor in the way they’ll vote. This is a classic issue of asymmetric polarisation – it pleases the moderate to say there are extremists on both sides, yet the prochoice side should never have accepted that premise. The anti-abortionists, at their extremes, want to curtail this right for every woman, in every circumstance. There isn’t a pro-choice activist on Earth who wants all pregnancies to end in termination. If the past five years have taught us anything, it’s that the most polarised have the most to gain, politically, from a calcified debate.
Precisely because it is insoluble, the issue has an obliterative quality, scorching everything around it. Who wants to talk about tax bands and green energy subsidies, when there is life and death at stake? This, again, appears to play better for Trump, since the left wins when it builds a plausible, detailed, coherent plan for a different future, whereas the right wins when it offers up absolutes and asks the voter to build an identity round one or the other.
However, there are deeper drivers in politics than these broad brush manoeuvres, and there are also hard numbers. With 61% of Americans favouring legal access to abortion, public support is the highest it has been for decades. Moreover, the issue of a woman’s right to choose tends to be abstract for those who oppose it – that fervent crusade for the unborn is a cause so conceptual that it rarely even makes the leap into the real world of a corresponding interest in infant health.
Pro-choicers, meanwhile, are very concrete in their beliefs. They know, or at least can remember, the hot anxiety of a suspected pregnancy they didn’t plan and can’t afford. If, as the saying goes, your message starts to cut through when the reality you describe matches the one people are living in, Biden and (if he has any sense) his more trenchant advocates for choice will find an electorate that has lived the truth of what they say.
When the right draws a dividing line, it delights to find, and often relies upon, progressives being caught on the hop: the story of the left’s failure, in the US and in Europe, has lately been the defence of causes we simply weren’t expecting to resurface. Fighting open white supremacism, defending human rights and the rule of law, propounding international cooperation, rejecting narrow nationalism, so many of these debates seem to belong to another age. It’s like turning up to a badminton match and finding yourself in a duel. The brutality is bracing, but also you’ve forgotten all the rules. Abortion is different – the muscles of this argument never atrophied, because the fight was never over.
Even while abortion has receded as a debating point, the past 15 years have seen the steady erosion of both access to it – there are now six states with only one abortion clinic each – and its legal basis. Under Trump’s presidency, states across the south and midwest have introduced laws criminalising abortion from six weeks. Even previous to that, 38 states had introduced foetal homicide laws; 29 of which apply from the point of conception. These, per Roe v Wade, exclude abortion, but that created the anomaly that a foetus has constitutional rights if you kill it accidentally – through drug use, for example – but not if you deliberately terminate the pregnancy.
Maybe an unwritten constitution could weather a contradiction like that, but a written one cannot, and Trump’s blithe promise that a new justice would automatically overturn Roe, unlike so many of his statements, had foundations. The right to abortion was already hanging by a thread, but the alternative perspective is that it was a battle waiting to be fought; many campaigners will be thinking, bring it on.