Why There Will Be No Abortion Settlement: Senator Schumer Edition

A follow up to my last post

My home state of New York has one of the most liberal abortion regimes in the world. As of 2019, there are no restrictions on abortion in the first 24 weeks, and after 24 weeks abortion is still permitted if either the fetus is not viable or the mother’s health is threatened by continuing the pregnancy. The same legislation also removed all criminal penalties for abortion, which means that if you did perform a prohibited abortion after 24 weeks, you could not be charged with any crime. (I assume you could still face penalties if you caused a woman to abort unexpectedly through negligence or malfeasance.) There are no waiting periods, counseling requirements, or additional consent requirements, and abortions can be performed by licensed medical professionals who are not doctors, such as nurse practitioners, physicians assistants and midwives. Abortion law in Sweden—arguably the most liberal in Europe, and appropriately so given that abortion is widely viewed as a normal part of healthcare there—is more restrictive on several points, including a shorter window for unrestricted abortion access (18 weeks rather than 24 weeks) and criminal penalties for illegal abortions.

So unless something radical changes in New York’s culture and politics, the end of Roe v. Wade will have no immediate impact on New Yorkers. Indeed, the reason New York liberalized its abortion law so comprehensively in 2019 was in anticipation of the possible repeal of Roe and the return of the question to the state legislatures. For New Yorkers who favor expansive abortion rights (and a supermajority of New Yorkers do so), the most rational fear is of the next turn of the screw, that future Republican majorities in Congress will pass laws restricting abortion rights nationally. From a purely parochial perspective, then, the interests of New Yorkers who favor abortion rights lie first and foremost in making sure Congress does nothing to preempt state legislation that may be substantially more liberal than the country as a whole would tolerate.

Yet the senior Senator from New York, who is also the Senate Majority Leader, has already announced that he’s going to bring legislation to a vote that would enshrine a more liberal abortion regime nationwide than is required by Roe. He’s doing this in spite of the fact that he doesn’t have the votes to pass the law even if the filibuster didn’t stand in the way: Senator Joe Manchin (D-WV) is opposed, and so are Senators Lisa Murkowski (R-AK) and Susan Collins (R-ME) who have a competing bill that narrowly attempts to freeze the current judicial understanding of Roe (which allows quite a bit of state-level restriction). He’s doing this to lay down a marker, to make it clear what the Democratic Party stands for. That is: the Democratic Party stands for robust protection of abortion rights across the country.

Since the bill won’t pass, it’s properly described as a message bill, and you bring message bills to do just that: send a message to the electorate. There’s an election coming up, and by their actions the Democrats are saying that they believe enough voters in the right places will reward them for precisely that stance. They’re betting that this is a winning issue for Tim Ryan running for U.S. Senate in Ohio and John Fetterman running in Pennsylvania, and for countless vulnerable House incumbents.

Is that a good bet? I honestly don’t know. The case in favor is that what abortion opponents have had on their side all along is intensity, and that the impending demise of Roe gives the Democrats the opportunity to gin up similar intensity on their side of the issue—but only if they make it clear that they are going to fight. Since about 30% of the country favors an expansive definition of abortion rights while only about 20% favor prohibition in all or most circumstances, intensity could be the key to victory—provided the voters in question live in the same place which I suspect they don’t. The case against, then, is that because they don’t, nationalizing the issue will raise intensity on both sides, and thereby replicate the geographic polarization that Democrats have been on the losing end of for years now.

Of course, abortion is also precisely the kind of issue that could re-scramble the map. Texas’s Republican Party is far to the right of that state on abortion. Without Roe, they’ll have to own the very restrictive laws they have already passed, and maybe the reaction to that is enough to put someone like Beto O’Rourke in the governor’s mansion? Alaska and Nevada have substantial majorities that favor abortion rights; Montana isn’t that far behind. Maybe this is the issue that reinvigorates Democratic prospects in freedom-loving Western states?

But I keep coming back to New York. The risk to New Yorkers is asymmetric: nationalization can do little to expand abortion rights in New York, but could contract them. It’s possible that the Supreme Court would strike down a Democratic effort to protect abortion rights, arguing that the issue is reserved to the states as part of their police power. But if both parties agree that this is an appropriate issue for federal legislation then maybe the Supreme Court will allow the issue to be nationalized. In that case, the result could be a stomach-turning see-saw, as successive Democratic and Republican majorities repeal each other’s abortion laws—or the state of the law nationally could settle somewhere in the national center, a center that is meaningfully more restrictive than what New York has currently codified into law.

Yet, here in New York, the intensity is already high, high enough to get that very liberal abortion law passed in 2019 in anticipation of the end of Roe, and I am quite confident that the Majority Leader understands what his constituents want him to advocate for, and took that into account when deciding how to respond to the prospect of Roe falling, and how much outreach to do to the Republican Senators from Maine and Alaska. New York Democrats want their representatives in Washington to fight for an expansive vision of abortion rights nationally, because they believe that is right and good.

This is what common good politics looks like when there is no consensus on what the common good is, and it’s why I say there will be no post-Roe settlement on abortion.