A Backlash to Dobbs Depends on How Much It Affects the Middle Class

A Backlash to Dobbs Depends on How Much It Affects the Middle Class

Read time: 4 minutes

By David A. Hopkins

Tuesday, June 28, 2022

A Backlash to Dobbs Depends on How Much It Affects the Middle Class

In the Atlantic on Monday, David Frum argued that the rise and fall of the Prohibition movement provides a useful historical parallel to the likely trajectory of abortion politics in the United States a century later. Prohibition sentiment grew steadily for decades after the Civil War, culminating in the nationwide banning of alcohol sales in 1919 via constitutional amendment and congressional legislation. Once imposed, however, the policy proved sufficiently unpopular that Prohibition was not only repealed within 14 years via a second constitutional amendment, but the entire national debate over the legality of alcohol was also permanently resolved. According to Frum, last week's Supreme Court decision in Dobbs v. Jackson Women's Health could well play an analogous role to the enactment of the Volstead Act: an apparent breakthrough victory for restrictionists that will turn out to presage a more enduring retreat.

This seems unlikely. Abortion and alcohol are sufficiently different—as are the 1920s and 2020s, for that matter—that the comparison feels imperfect in many respects. Yet Frum makes a perceptive observation that is crucial for anticipating how much of a backlash the banning of abortion is likely to provoke, even if the end result is not the fading conflict and stable compromise he envisions. As the piece explains, a powerful source of mobilized opposition to Prohibition came not merely from the immigrants and laborers whose reputation for intemperance (and resulting social disorder) had been the principal justification for its initial imposition, but also from influential middle-class metropolitans, accustomed to living mostly as they pleased, who became annoyed by the newfound restrictions on their own autonomy once the policy swung into place.

Now that a legal ban on abortion is moving abruptly from hypothetical objective to practical reality in much of Red America, the question of how it will be implemented becomes newly salient. The younger and lower-income women who are the primary population of abortion seekers, but who are not especially politically mobilized, will inevitably be the most directly affected by the Dobbs decision. But the stricter the enforcement regime, the more its effects will climb up the ladder of age and social status to reach citizens with greater political power and firmer standing expectations of deference from the world around them.

Will married thirty-something women of the bourgeoisie be left with permanent physical damage as a result of medical complications that could have been avoided with access to abortion procedures? Will their miscarriages be subjected to criminal investigation? Will they be denied fertility treatments, such as in-vitro fertilization, that involve the destruction of embryos? Will they be sent to prison for procuring illicit mifepristone pills, or face lawsuits for driving their daughters to clinics across state lines? The more the answer to these questions is yes, the more that dissatisfaction is likely to build across these women's well-connected social networks and provide fodder for news media stories and campaign commercials that portray them as victims of injustice.

Frum expects red-state officials to implement uniformly aggressive enforcement measures, which leaves him relatively confident in predicting a powerful backlash that will steadily undermine the strength of the pro-life movement. But our legal system gives substantial discretion to individual officials in charging and sentencing defendants. It's quite possible that abortion prohibitions on the books will be most strictly enforced among populations with the least political power. When combined with the fact that (unlike the Prohibition case) the regions of the country where opposition to restriction is the highest are, at least for now, free from being directly subjected to the same legal constraints, such selective implementation might keep popular opposition from becoming sufficiently strong to disrupt the close balance of electoral power between the two sides that has already endured for the past 30 years.

Moreover, many of the authorities now in position to enforce the new restrictions are not themselves conservatives. The local district attorneys and judges elected in pro-choice communities, such as most large metropolitan centers, will face strong personal incentives to use their discretion to minimally enforce the law, especially against politically sympathetic subgroups. Over time, red-state legislatures may respond to this shirking by transferring enforcement responsibilities from local to state-level officials elected by majority-Republican constituencies. But the questions of who will get punished how for what are, at this stage, unresolved and unclear, with a palpable tension arising between the substance and the politics of the abortion issue: strict enforcement of the bans would work to the electoral advantage of the pro-choice movement while lax enforcement would be relatively favorable to the political interests of the pro-life cause.

Until we have a better sense of how the post-Dobbs world will actually operate in practice, forecasting the larger consequences of the decision remains very difficult. But history can be a reliable guide in one respect. The amount of political risk incurred by proponents of a new policy often reflects how much the highly efficacious members of the American upper middle class view the change as disrupting the lifestyle of people like themselves.