Why Abortion is This Century’s Prohibition

There will be an ironic outcome of the Republican dogs finally catching the car they’ve been baying after for the past 50 years: abortion rights in this country will be stronger and more firmly entrenched in our laws after overturning Roe than they ever were under Roe. There are two fundamental human truths underlying my confident prediction: denying a large portion of the population the right to something they have taken for granted for generations rarely goes well, and unpopular laws do not long remain laws under a democratic form of government, no matter how imperfectly democratic our system may be.

The Republican Party has made a historic and massive political blunder by actually delivering on its promises to make abortion illegal. The electoral results thus far speak for themselves, and it’s only going to get worse for them. They are going to lose most elections they had any chance of winning until Democrats hold enough power to enshrine abortion rights in our state and federal constitutions.

Why do I use prohibition as a comparison point? Allow me to explain: alcohol prohibition was able to be enshrined in the Federal Constitution by a wildly ambitious and successful temperance movement and an aggressive third-party threat to the duopoly – a far grander political win for the prohibitionists than the anti-abortionists have ever seriously been in reach of. Despite that massive victory under law, within a single generation (the 18th Amendment passed in 1920 and was repealed in early 1933) alcohol prohibition was gone and the idea has never recovered politically, and has been used as an example of a failed experiment cited to reverse a host of moralistic laws and policies regarding other drugs.

Prohibition was a moralistic imposition on most of the country who saw nothing wrong – certainly nothing criminal – about having a drink of alcohol and thus was widely flouted, and created a vast criminal enterprise that harmed society in myriad other ways arguably worse than legal alcohol could ever could.

Prohibition was so intolerable to the vast majority of citizens that the Prohibition Party completely died off, the Republicans who largely backed the policy to counter the Prohibitionist’s growth got shellacked for the next generation (possibly empowering the New Deal coalition) and our politics rallied around repeal with such a force and unanimity, that it became politically impossible for ANYONE supporting the idea to survive an election.

The same dynamics are happening – and will only accelerate – regarding prohibition and criminalization of abortion. The Christian right, through the Republican Party, made abortion a litmus test for political viability in the GOP for the past 40 to 50 years, and despite their efforts were only able to attack Roe in marginal ways until culminating in control of Supreme Court appointments by two Presidents who lost the popular vote (Bush 2’s first term and Trump’s first term were both due only to the counter-majoritarian flaws of the Electoral College). That counter-majoritarian result was then bolstered by rule-breaking by Mitch McConnell in the vastly malapportioned Senate to essentially steal two Supreme Court appointments. It was a masterful and hubristic high-wire act flouting tradition and ignoring their own self-proclaimed standards and expliting the least democratic features of our Constitutional system which finally enabled the overturning of Roe. Given that the anti-abortion position has NEVER commanded a majority of support – nor even a leading plurality – the GOP’s ‘achievement’ is far more fragile and contingent than prohibition ever was.

Abortion restrictions are also highly moralistic and stem from the imposition of a minority religious viewpoint on the rest of the populace who don’t share those moral sentiments, or religious views – including many who hold strongly diametric views. The imposition of abortion restrictions, and often even criminal liability and enforcement, is already creating a massive social resistance movement focused on giving women the medical services they want and need. It may not be a vast and profitable criminal network, but it will be a persistent and guerrilla resistance to restrictive laws in every state, every city, and on every front, that will prove impossible to combat with the police powers of the state.

The abortion restrictionists made an even worse political miscalculation than the prohibitionists – they have angered and targeted for persecution the vast majority of an entire gender and alienated an entire rising generation, one of the largest cohorts since the Boomers, who are especially attuned to gender issues and sex discrimination. The political backlash in our elections will be massive and nigh unsurvivable in the vast majority of the country. The GOP is going down with the ship so long so they cling to their litmus test of being anti-abortion under all circumstances. It won’t be long before you see Republican politicians walking back that extreme position – just as Trump himself did recently (if ever there was a creature with an instinct for a populist position, it’s Trump – I grant him that much credit).

We have already seen 6 state Supreme Courts move to protect abortion rights on other bases than that of Roe. We’ve also seen a movement to enshrine protection of abortion in many states’ own constitutions where Democrats hold a trifecta, or have recourse to the ballot via the initiative, including hyper-conservative Kansas! As previously mentioned, we have seen a landslide of support toward the Democrats directly as a result of the GOP’s complete identification with anti-abortion policies. And it won’t end there. Here in Arizona, we are going to have an abortion rights initiative on the ballot in 2024 (please visit Arizonans for Abortion Rights and sign up to help) You can also watch Catherine Nichols of Arizona List talk about the effort with TheDGT.org here:

The abortion rights initiative will pass resoundingly here in AZ- and I have zero doubt that it will deliver wins for President Biden and all down the ballot for Democrats, including handing control of both the state Senate and House to the Democrats for the first time since the early 1960s. You can see the trends rising in the results of 2022 (where Democrats captured most of the top offices in AZ), and in the 2023 special elections thus far in which Democrats are consistently over-performing expectations. This will continue until Republicans walk back their extremist position on abortion, and so many other anti-democratic, anti-majoritarian positions under the banner of MAGA, and give up on their cult-like support for one of the worst, most corrupt, and lawless people in the world – Donald Trump.

Watch Chris Hayes break it down here:

When the dust settles a couple years down the line, I predict that most states will have firmly-founded judicial protections of abortion on state constitutional grounds, there will be federal constitutional rulings protecting the right to travel for medical reasons, including abortion services, and most states will have specific amendments to their states’ constitutions protecting abortions, and quite likely a federal constitutional amendment protecting abortion, likely in the form of a ratified ERA.

Fear not this century’s prohibition. It is unpopular. We are still a democracy, though an imperfect one – and this tragic outcome of minority rule may provide the impetus to change that, too). We will have the final say. And we will win. And this century’s moralistic nosey parkers wanting to control your sexual behavior and family planning will be flushed down history’s toilet just as cleanly as was the Prohibition Party of the last century.

Have faith and get to work.