Abortion activists must learn to lose well

Abortion activists must learn to lose well

In right-leaning state capitals, it is as though Roe v. Wade is already gone. Anticipating that the Supreme Court will soon limit if not eliminate the half-century-old constitutional right to an abortion, legislators are growing increasingly creative beyond merely moving up the stage in pregnancy at which abortion bans apply. 

Pro-choice activists are likely hunting for fresh strategies and innovative tactics that will help them win these fights. But there’s another element of a successful long-term campaign: learning how to lose. 

There are, simply, good ways to lose public-policy fights and bad ways to lose public-policy fights. If they can learn how to lose well, activists now have an opening for large-scale public education, not only in states that are set to pass new laws but the rest of a country whose citizens, media, and politicians are newly engaged with the topic. It is a chance to talk about who gets abortions and why, and what harm they and their families will experience if access to the procedure disappears.

One potential model can be found, surprisingly, in a movement now studied for its speedy triumph. While the cause of same-sex marriage is today recalled as a smashing success, for most of its life it was an immediate political loser at both the state and federal levels. That forced marriage activists to question what they could hope to accomplish in the face of inevitable defeat, and pushed them towards an approach that Evan Wolfson, the founder of the single-issue group Freedom to Marry and the movement’s leading strategist, called “losing forward.” 

The first breakthroughs for marriage equality, in the 1990s, came through state courts, but in each case — in Hawaii, Alaska, and Vermont — hard-won legal progress was clawed back by political opposition. At the same time, dozens of other governors signed bills to ensure same-sex unions would never be recognized in their states. But conservative activists soon realized those laws offered no defense against a state’s own courts ruling that gays and lesbians were already entitled to marry. So they redrafted their bans in the form of constitutional amendments, which more than half of states ended up adopting via referendum, almost all in a span between 2004 and 2008. Only one state then rejected a constitutional amendment when put before voters — Arizona, which ended up reversing itself two years later — and many of them passed by landslide margins.

In nearly every instance, gay-marriage opponents were assured victory from the moment they decided to change the law. Yet at first gay-rights activists gamely tried to defeat them: they raised money, commissioned opinion research, and sought the clearest path to turn lawmakers and voters against the proposal. Almost always they would turn to messages that aimed to build opposition to the ban rather than support for marriage equality.

Sometimes they focussed on technical details of how the ban was drafted, like the time in 2004 that activists went to Columbus to lobby legislators against a state ban by brandishing a letter in disapproval from Ohio State University president. Her argument against the Defense of Marriage Act: the Buckeyes would suffer in competition with Big Ten rivals because the new law would foreclose a school’s ability to one day offer domestic-partner benefits to prospective employees.

Most frequently, the campaigns would end up avoiding the topic of marriage or homosexuality altogether. “Proposition 8 would be a terrible mistake for California,” Senator Dianne Feinstein warned in the closing ad in the failed campaign against a 2008 ban in that state. “It changes our Constitution, eliminates fundamental rights, and treats people differently under the law.”

Individual legislative or electoral campaigns, whether for a candidate or over an issue, are reflexively structured to maximize their vote share. It’s quite possible that the university-competitiveness argument helped turn a few Republican lawmakers against Ohio’s Defense of Marriage Act on its way to 18-15 passage in the state senate, or that the Feinstein ad cut Proposition 8’s margin of victory from seven or eight points to under five. But they left gay-rights activists no better off in the broader debate than they had been before.

In the years that followed, Wolfson pushed advocates to think of these individual state-level conflicts as part of a longer public conversation. Instead of scheming to win the attention of political elites or media coverage for their issue, as activists often found themselves forced to do, opponents had elevated it for them. Rather than using arguments framed against the opposition proposal, they began using the spotlight to talk about why gays and lesbians sought to marry, prominently featuring same-sex families who had previously been absent from campaign ads. In 2012, not only did activists end up defeating a constitutional ban in Minnesota, but the type of campaign they ran — on the merits of gay marriage rather than shortcomings of the proposed amendment — created the political momentum for the governor just months later to sign into law that for the first time recognized same-sex unions in the state.

If, as expected, the Supreme Court this year upholds the constitutionality of a Mississippi law banning abortion after fifteen weeks, and that of a similar but more creatively drafted statute in Texas that courts have thus far permitted to stand, conservative legislators elsewhere are likely to immediately replicate those measures. A decision that undoes Roe v. Wade, even in part, will be read as an invitation to test what if any restrictions federal courts will consider off-limits. The Guttmacher Institute, a pro-abortion-rights think tank, has identified 26 states “certain to likely to ban abortion” in such a scenario. (Some already have so-called “trigger statutes” that would do so automatically.) A Missouri bill would empower private citizens to sue anyone who helps a resident travel out of state for a procedure, one in South Dakota would forbid consultations via telemedicine, while thirteen states have proposals to prohibit abortions for the purpose of sex selection.

For abortion-rights supporters, some of these fights will be plainly unwinnable from the outset, just as the gay-marriage bans were. Nevertheless, the natural instinct of activists will be to do everything they can to stop such bills wherever they pop up, especially since — unlike in the gay-marriage fight — state governments will be rolling back a right citizens have taken for granted rather than trying to block a new one.

In their quest to limit the damage, activists may be inclined to win over legislators by quarreling with a proposal’s particulars — like, for example, why a six-week cutoff is too early for many women to be aware of pregnancy, or the risks of using a novel mechanism to punish abortion providers. They may want to argue that the decision to let private citizens sue for damages, a concept developed specifically to keep courts from blocking implementation, violates our historical tradition of judicial review or creates perverse incentives through bounty rewards.

Perhaps as a result of the pressure or public-opinion shifts around the particulars of a six-week ban leads a state legislature to exempt rideshare drivers — who appear liable under the Texas and Missouri laws — from responsibility if they deliver someone to a clinic. Maybe those seem like effective mitigation, making the best of a bad situation, and shrinking legislative margins buck up abortion-rights supporters with the feeling of momentum.

But the bills will still become law, and the overall future of the pro-choice movement lies not in convincing the public that six-week bans are wrong, or that enforcing them with private bounties is misguided public policy. The movement’s goal is building a durable coalition that values a broad understanding of reproductive freedom, not just increasing resistance to narrow proposals defined by their opponents. Most of the near-term battles are lost, but the conflicts themselves do not have to be lost opportunities.