If anything was less impressive on election night than the “red wave,” it was the abortion wave. Blue states protected abortion rights as expected, but public officials who have supported or enforced limits on abortion in nearly 20 red states were re-elected.
Americans have learned since June that the U.S. Supreme Court didn’t make abortion illegal in the Dobbs decision. Instead, after decades of jurisprudence that effectively taught Americans to embrace abortion, the Court made abortion an issue for voters, for Congress, and for states.
Since June, the states have been actively forming their own policy. California, New York, and Illinois have maintained their policy of abortion on demand through all nine months of pregnancy, while a dozen other states have moved in various ways to abolish abortion or embrace pain-capable or similar protections.
Yet, since June, there has been a political, financial, and media onslaught to repudiate the Dobbs decision by denouncing officials who enforced state laws and running hard against Republicans who support abortion abolition or simply limits to the killing. A reported $500 million have been spent attacking Republicans who supported pro-life law and policy. Abortion was an election issue in virtually every state’s elections because Democrats made it an issue with their ads.
The first national election after the Court overruled Roe was destined to be raucous, but the issue has fizzled in many states for abortion activists.
If Democrats had consolidated control of the U.S. Senate, they could have suspended the filibuster and changed the make-up of the Supreme Court by majority vote. If Democrats had consolidated control of both the U.S. House and the Senate, they could have enacted a federal statute that legalized abortion for any reason, at any time of pregnancy, which President Biden promised to sign. That didn’t happen.
Abortion activists did even more poorly at the state level. Democrats didn’t crack state governor, state attorney general, or state house seats in red states that have enforced abortion limits since June. Abortion activists couldn’t defeat public officials in those states or win the U.S. House or Senate to block those state laws.
Thirteen states have aimed to enforce early gestational limits on abortion. In Alabama, Governor Ivey won with 67 percent. In Arkansas, Sara Huckabee Sanders won with 63 percent. In Idaho, Republican Brad Little was reelected with 60 percent. In Oklahoma, Republican Governor Stitt was reelected with 55 percent of the vote. In South Dakota, Governor Noem was reelected with 62 percent. And in Texas, which got the most media attention for a year leading up to the Dobbs decision, Governor Abbott was reelected with nearly 55 percent.
In four additional states with early gestational prohibitions, Georgia Gov. Brian Kemp was reelected with 53 percent, Iowa Gov. Kim Reynolds won with 58 percent, Ohio Gov. Mike Dewine was re-elected with 62 percent, and Tennessee Gov. Bill Lee was re-elected with 65 percent. South Carolina Gov. Henry McMaster, who signed an early gestational limit in August, was re-elected with 58 percent of the vote.
Florida Gov. Ron DeSantis, who supported and signed a “pain capable” prohibition on abortion after 15 weeks of pregnancy, was reelected with nearly 60 percent.
The claim that the abortion issue held back Republicans never asks how much the abortion issue spurred votes for Republicans and against Democrats.
Democrats promising to change the Supreme Court or enact a federal law legalizing on-demand abortion did not take the House or Senate. Nor did abortion activists sweep the state governorships or state houses or state attorneys general races.
When abortion activists circumvented the lawmaking process and fought through ballot initiatives, they won. In California, Prop. 1, which insulated abortion rights from any legal limits, won with 65 percent. In Vermont, a similar amendment won with 77 percent of the vote. No surprise in either state.
On the other hand, in Kentucky, a ballot initiative which asked voters to make the state constitution abortion-neutral—reserving it to the people to decide through their elected representatives—was rejected by 52 percent. In Montana, an initiative asking voters to legally protect infants who survive an abortion and are born alive is losing by 52 percent.
One of the biggest disappointments of the night came in Michigan, where Prop. 3, creating a constitutional right to abortion immune from regulation or limits, won with 55 percent. No parental notice or consent. No health and safety regulations. No regulatory oversight. No limit on late-term abortions. No legal recourse for botched abortions.
Judges interpret the meaning of state constitutional rights. Voters in California, Vermont, and Michigan took the issue away from the people and handed it over to judges. The tragic result is that, post-Dobbs, millions of Americans now live in states that are more pro-abortion than they ever were under Roe. And more of these state referenda will be pushed in future election cycles.
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America without Roe is still crystalizing politically and will require very careful prudential analyses by pro-life leaders. How well do they know their state and public opinion? The lesson of Michigan may be that pro-life advocates will have to calibrate anti-abortion law and policy to garner sufficient majority support to head off vague and broad ballot initiatives.
We are living in a post-Roe America, even while we find that the cultural and political battle over abortion will continue to dominate election cycles for years to come. This will continue until, in the words of Lincoln, America becomes “all one thing or all the other.”
Americans have raised hundreds of millions of dollars over decades to help women with unplanned pregnancies. Americans have passed federal and state pregnancy discrimination acts and have worked to enable women to juggle work and family. As pro-life Americans, we must continue to be on the side of women and mothers as surely as we’re on the side of preborn children. As Americans, we must be prepared to dig in for the long haul after Dobbs and work for generational change.