Let’s Stop Letting Minority Rule Give Us Science Fiction Abortion Laws

June 3, 2019 | 4:15 pm
Photo: Elizabeth Greenwald/CC BY-SA 4.0 (Wikimedia)
Michael Latner
Senior Voting Rights Fellow

Missouri is still set to become the first state in over 45 years to not offer abortion as a part of healthcare. Georgia, Alabama and Mississippi have recently joined other states in not only limiting access to abortion (relying on misinformation), but also challenging its constitutionality. This is the latest phase of an anti-abortion strategy based on pseudoscience, which began after 2010, when conservative forces swept into power in numerous state legislatures. Since then, hundreds of restrictions on abortion have been passed, ranging from extended waiting periods, insurance restrictions and restrictions on clinics and doctors, to these more recent bills that ban abortion as early as six weeks into a pregnancy.

Our arrival at this point, where public policies opposed overwhelmingly by medical experts as well as the majority of Americans might soon become law, shows how biased political institutions give way to extreme ideological forces untethered to scientific reasoning or evidence. A properly functioning democracy restrains such forces by relying on widely accessible information and institutions that give equal weight to public judgment. Abortion policy would probably be much different in the U.S. under institutions that actually respected political equality and majority rule.

Such extreme policies are unpopular in part because advocates peddle junk science and major medical organizations have been vocal in their opposition. The American Congress of Obstetricians and Gynecologists strongly opposes so-called fetal “heartbeat” (this language is medically inaccurate) legislation like that recently passed in Georgia and Alabama. They have also had to alert the public that “Claims regarding abortion ‘reversal’ treatment are not based on science and do not meet clinical standards” in response to bill language from states like Oklahoma, Arkansas, Idaho, South Dakota and Utah.

The science-defying bills don’t stop there. An Ohio bill including language about implanting ectopic pregnancies was “science fiction,” according to Daniel Grossman, OB/GYN and director of Advancing New Standards in Reproductive Health at the University of California at San Francisco. Gynecologist and women’s health advocate Dr. Jennifer Gunter refers to such bills as “medically illiterate.” Similarly, the American Medical Association has consistently opposed politicians trying to determine what is medically necessary treatment or shielding practitioners from withholding care for moral or religious objections. And as political scientist Alex Keena has argued, such “supply side” policies that seek to limit access to care are generally opposed by the medical community because they actually increase health risks for women and children.

And yet these bills pass. They pass, in part, because biased representation in these state legislatures amplifies the voting power of these extreme viewpoints. Consider the states that have passed the most restrictive legislation since 2011. The association between biased institutions and restrictive abortion policy can be evaluated using the partisan bias measure that indicates how gerrymandered state legislatures are. Negative values are biased in favor of Republicans, positive values biased in favor of Democrats. We don’t have adequate election data for state elections in Alabama and Mississippi to estimate partisan bias. However, their Congressional districts are among the most gerrymandered in the country. It is easy to see that most of the early abortion bans were passed in heavily gerrymandered legislatures.

Gerrymandering critic David Daley recently described how the early abortion bans in Georgia and Alabama would not have passed in their current form without the advantage of electoral bias. Both states have recently held elections that were basically tied statewide between the two major parties, but most state legislative seats are uncontested or uncompetitive, and Republicans hold large majorities in both legislatures. Those large majorities increase the legislative strength of the anti-abortion faction. Even in Louisiana, where an early abortion ban passed with overwhelming support that included a dozen Democrats, a less biased districting plan might have resulted in a slightly less extreme bill, with exceptions for rape or incest.

It’s also worth pointing out that the most disenfranchised groups stand to be the most affected by extreme anti-science reproductive health policies. Restrictive voting laws in Georgia, North Carolina and elsewhere systematically hurt Black voters both in practice and by design. And it is black women who may be affected the most by the abortion bans and other restrictions on reproductive healthcare. As journalist Samara Lynn points out, the facilities that provide abortions are also safe havens for women to receive prenatal care, sexual education, and pregnancy care. Closing of these facilities will disproportionately affect low-income black women and those in rural areas.

Women of color already face unacceptably high maternal mortality and infant death rates in the US, and barriers to voting don’t help. In addition to electoral bias in state legislatures and Congress, the Electoral College also contributed to this state of affairs. The latest wave of direct challenges to Roe v Wade, which secures the right to abortion into the 24th week of pregnancy, are aimed squarely at the two newest members of the Court, appointed by a president who lost the popular vote, justices Gorsuch and Kavanaugh. Even if the first early abortion ban is overturned by the Court, there are many headed their way.

Imagine what the debate over abortion policy would sound like if it worked through electoral institutions that treated each voice equally? The cause of electoral reform is not only about securing equal voting rights, as important as that is. It is also a cause for sound public policy, policy that can receive full public scrutiny and equal consideration in a competitive electoral environment. Scientifically sound reforms, like those included in the For the People Act, would contribute to an upgrade in our electoral infrastructure that gives equal voice to all. Automatic voter registration, easy access to ballots and early voting, independent redistricting commissions, full financial disclosure for campaign donors, and similar measures would correct the bias that is currently amplifying such extreme, unscientific views on abortion.

Everybody deserves to be heard on this important medical and moral discourse. But what we have now reflects the distorted discourse of a minority view amplified through the bias of our political institutions. For the life of our democracy, we need to correct these inequalities and ensure that voters have an equal voice.