What Happened to the Incremental Approach Among Anti-Choice Politicians?


A few years ago in Ohio, the biggest fight between anti-choice activists was whether the state should pass a 20-week “fetal pain” ban or a six-week heartbeat ban. The discourse became so great that the movement leaders began weighing in; old-school advocate and former National Right to Life Committee president Dr. Jack Willke supported the heartbeat legislation, while anti-choice lawyer James Bopp Jr. offered dire warnings that anything more restrictive than a 20-week ban could validate Roe v. Wade. By the time the heartbeat bill died for good, the activist landscape in the state was permanently divided, with Ohio Right to Life on one side and splinter group Ohio ProLife Action, with Willke as its second vice president, on the other.

This year, the situation has been different. Rather than taking a cautious approach, carefully weighing potential court cases, a number of state legislators have chosen to throw up any anti-choice legislation they can, passing the most extreme bans possible just to see if they stick. In both Arkansas and North Dakota, heartbeat bans have been proposed and supported by legislators who are not fearful of a challenge, but rather are hoping for one; they’ve admitted that their bills are unlikely to withstand court scrutiny but argue that Roe can’t be overturned without a case that at least offers the possibility.

Why have states gone so far so fast, and what has changed so drastically in the last year to make anti-choice legislators no longer concerned that they may accidentally reaffirm Roe rather than overturn it? A look at Kansas shows the biggest problem for the anti-choice movement in some of the reddest of states: They’ve already passed so many bans that they have little left on their wishlist.

“We’re at a point of re-evaluation,” anti-choice state Rep. Lance Kinzer (R-Olathe) told the Associated Press earlier this month. “We’re now looking at a different agenda because so much of what we wanted to be accomplished, will be accomplished.”

As the AP reports, Kansas has a massive anti-choice majority in both the state house and senate as well as the governor’s automatic approval for all anti-choice bills. But the state’s free reign to add as many anti-choice laws as it chooses is both a blessing and a curse. Once every potential incremental law has been passed—forcing clinics to rebuild for no medical reason, enacting tax code changes to punish doctors for offering abortions and women for receiving them, banning abortion with no exception for health or sexual assault, even prior to viability, and allowing anyone to deny medication they believe may be “abortion inducing”—the only bills that remain are the most extreme, and hence the most likely to result in a legal battle that anti-choicers are highly likely to lose.

What happens once Kansas for Life, the most powerful policy group in the state, no longer has anything left on its action list? If the only options are to advocate for bills that could backfire and reaffirm Roe, or lose its legislative influence, which way will the group, and others like it, go?

When it comes to being a part of state policy, anti-choice organizations aren’t going to simply step back or disband once they’ve accomplished everything they can without endangering their own goals. Instead, we will see more of them support extreme bills destined for failure simply so they can stay relevant and influential and hope that the courts will string those cases out.

What happened to the incremental approach? It got tossed once too many extreme state legislators allowed unfettered passage of every “moderate” anti-choice restriction in the books. Now, all that are left are full abortion bans.

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  • Mercedes Allen

    There might be a better word for it, but I’ve nicknamed this “gambit litigation / legislation,” or “gambit strategies.” That’s sort of what it is: it doesn’t have to work for long — it just has to create a hole in legal precedent long enough to drive other legislation or faulty ideas through and eventually arrive at a precedent that will stick. It’s been a corporate technique in the past, and the right wing seemed to catch onto it about the time that Prop 8 happened (which actually explains why they just tossed out every bit of batcrap crazy they could think of, to see what might work).

  • Skulander

    It’s pretty clear they’re not going to stop. They’re not going to just give up hurting women and controlling their lives. This situation is extremely insulting to women. The misogyny and sexism is so sickening, we should work to make sure those disgusting politicians never are elected again. GO VOTE! And help in campaigns if you have some free time. Even one person can accomplish much.