While the anti-abortion movement claimed a great victory when the Supreme Court overturned Roe v. Wade, the Republican Party has learned that this victory proved deeply unpopular with the American people. While Democrats favor abortion rights more than Republicans, 64% of surveyed voters say abortion should be always or mostly legal. While some Republican controlled state legislatures have imposed extreme restrictions on abortion rights, abortion rights supporters have won in several state ballots. As this is being written several more states (including my adopted state of Florida) have abortion rights measures on the ballot. Given that the anti-abortion view is held by a minority of voters, it is likely that these measures will pass in many states.
Because the anti-abortion position of the Republican party has proven unpopular and has imposed a political cost, the party’s rhetoric has shifted. The current rhetorical spin is that the Republican party is not against abortion rights. Rather, the party is for states’ rights. Those critical of this rhetoric like to point out that appeals to states’ rights was also a tactic employed by the southern states to defend slavery. While the analogy is imperfect, the comparison does have some merit.
The states’ rights argument for slavery amounts to contending that the states should have the freedom to decide whether they will allow slavery, and this is usually phrased in terms of an appeal to democracy. That is, the citizens of the state should vote to decide whether some people can be denied freedom and be owned. An obvious defect with this reasoning is that it rests on the assumption that it is a matter of freedom of choice to take away freedom of choice.
A similar defect arises with the states’ rights rhetoric in the abortion debate. If it is accepted that the citizens of the state have the right to decide the issue of abortion because they should be free of federal law, then it is problematic to argue that the state has the right to take away the freedom of women to decide whether they get an abortion. If choice is important, then having legal abortion allows women to choose: a woman is not mandated to have an abortion nor forbidden, so she can make the choice. Hence, this rhetorical move entails that abortion should be legal nationwide.
Someone might counter this by taking the anti-abortion stance that women should not be allowed that choice, perhaps by drawing an analogy with murder. After all, they might argue, we would not want people free to chose murder. But the problem with that reply is that by using the states’ rights rhetoric, the Republican party has acknowledged that the legality of abortion should be a matter of choice, and this makes it difficult to argue that abortion should not be a choice for individual women.
While intended to address the backlash from the unpopularity of the success of the anti-abortion movement, this rhetoric has caused backlash from that movement. Some anti-abortion activists have urged their followers to withdraw their support of Trump. There is the question of how much impact this will have on the election, given that anti-abortion voters will almost certainly not vote for Harris. But it might cause a few single-issue voters to stay home on election day or not vote for Trump.
Pro-abortion rights people are almost certainly not going to be fooled by this rhetoric, since they know this is a rhetorical shift and not a change in policy or goals. While it might win over a few of the undecided voters, it seems to have two effects. The first is that it gives Republicans an established rhetorical talking point to use whenever they are asked about abortion. The second is that it provides those who want to vote for anti-abortion Republicans but who are not anti-abortion themselves a way to rationalize their vote. They can insist the Republican party is “pro-choice” because their new rhetorical position is that the states should chose. But not that women should chose.
The states’ rights rhetorical move could be an effective strategy. While the anti-abortion movement would prefer a federal abortion ban, having the states decide is better for them than having abortion legal nationwide. After all, some states have put abortion bans in place and these have been wins for the movement. But the obvious downside for this movement is that some states have put in place protections for abortion rights, despite the anti-abortion movement’s desire to make the choice for everyone.
In closing, the states’ rights argument is a position that cannot be effectively defended, because its foundation is the principle of choice, and this entails that it is the women who should make the choice for themselves.