Don't Learn the Wrong Lessons from Kansas

It helps when your opponents are committed to unpopular positions

(PBS)

On August 2nd, voters in Kansas rejected a constitutional amendment that would have allowed their state legislature to pass restrictions on abortion in the first 22 weeks, doing so by a decisive margin of 59-41.

This perhaps surprising result has led many to argue that Democrats should run on abortion, or perhaps more specifically, that they should run on the fact that Republicans want to take away women’s rights. I think this is basically the right conclusion, but I do want to complicate it a little. Kansas happened because Republicans are extreme on abortion, and the Supreme Court allowed them to put their extremism into law in huge swaths of the country. Kansas did not happen because “running on social issues” is actually genius—it’s not—and Democrats should not internalize the message that it is, as many of them are beginning to do. What’s genius is running on issues where your opponents hold extreme views.

And I think it’s worth talking about the specifics of both Kansas and the Supreme Court in order to understand this.

Kansas wasn’t a triumph of democracy

In 2015, Kansas passed a law banning the dilation and evacuation method of abortion. This method is used in 95% of all abortions that take place after the first trimester, although post-first trimester abortions are only 11% of abortions. Descriptions of what exactly takes place during such an abortion are usually either intensely graphic or quite casual. You can take your pick between a pro-life former abortion provider explaining the procedure with a cartoon baby being ripped apart limb by limb or you can read from a state government about how “the fetus, and placenta are removed, using forceps or other instruments.” Regardless of description, dilation and evacuation abortions are used in the second trimester and involve a fetus being made into many pieces of a fetus while being removed from the mother’s body.

This was likely a popular bill in Kansas. In 2016, Kansas voters voted for Trump by a 21 point margin while Trump lost the national popular vote by a 2 point margin—they are really a far more conservative state than the rest of the country.

Gallup has asked Americans what they think about abortion at different stages for a long time. Below is from them:

The majority of Americans have always thought second trimester abortions should be illegal,¹ and Kansas is far more conservative than the country, so I think it’s a fair assumption to believe Kansas voters almost certainly opposed second trimester abortions in 2015 when the ban on dilation and evacuation procedures (basically the only method of second trimester abortions) was passed.

And yet, the law never went into effect, instead being struck down by the Kansas Supreme Court, not because of Roe v Wade, but because the Kansas Constitution says “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” That may seem unbelievable, but it is actually the part of the Constitution used by the Kansas Supreme Court to rule that Kansas, an extremely conservative state, could never ever pass a ban on second-trimester abortions.

So it became the case that Kansas could only pass abortion restrictions by first amending the constitution to allow for them. That’s why “abortion was on the ballot” in Kansas, except that it really wasn’t—what was on the ballot was the right of the state legislature to pass laws on abortion. But voters in Kansas are not stupid, and they knew that the Republicans they had elected to their state legislature would probably ban abortion at any stage of pregnancy. And that is genuinely very radical! As you can see from the same Gallup series above, almost nobody wants to ban first-trimester abortions.

So because the Kansas Supreme Court made a silly legal argument, AND because elected Kansas Republicans are so transparently radical on abortion, instead of Kansas voters getting what they almost definitely wanted—restrictions on second-trimester abortion while first-trimester abortions remain legal—they instead get abortion legal up until the 22nd week, far more liberal than basically the entirety of Europe. This situation strikes me as quite perverted, but I don’t actually think it’s unique; there are many issues in politics where a combination of the courts and out-of-touch politicians prevent the passing of policies that people would like. And abortion just happens to be one of the ones where Republicans are really out of touch and not Democrats.

If things were different, things would be different

The president’s party almost always loses the midterm, as you can see from the below graph from FiveThirtyEight.

On top of that, the current president is very unpopular, and inflation is really high. All of this should spell disaster for the Democrats, and yet, forecasters and bettors suggest they are likely to hold the Senate, and may not even lose the House by much or at all.

This is mostly because of the overturning of Roe v Wade. Roe v Wade was overturned on June 24th. If you look at any forecast of the House or Senate, you will see that the Democrats’ chances have gone way up since then. Even Joe Biden’s approval rating has gone up since then!

But the reason abortion is suddenly a massive winner for Democrats is because SCOTUS left everything up to the states, allowing for Republicans in state legislatures to ban abortion, often without exceptions for rape, often very early on in the pregnancy. Most Americans want most abortions—which they know are in the first trimester—to be legal. This has been the case for decades, as you can see from Pew below:

Alternatively though, you can imagine a scenario in which SCOTUS ruled that only some of Roe v Wade was overturned, only the part which prohibited states from passing restrictions on abortions before viability. In that scenario, you wouldn’t see abortion made illegal with no exceptions for rape in 13 states—you’d just see many states like Florida, where abortion is now banned after 15 weeks. And I think in that scenario, you would not see Democrats winning because of abortion, and it would be unwise for Democrats to run on the Republicans’ being abortion extremists, because in that scenario, their extremism would have absolutely zero effect on the laws. In that scenario, you should probably run on the fact that Republicans want to lower taxes on the rich and cut spending on everybody’s healthcare—the usual goodies.

A similar counterfactual can be applied to Kansas. If pro-lifers in the state had been more realistic, they could have proposed adding to the constitution that second-trimester abortion is banned—they might have won! But because they wanted to open up the door to a full ban, and Kansas voters knew this, Kansas voters didn’t let them have their way because full bans are unpopular, even in Kansas.

It won’t always be like this

If SCOTUS were to try and make the Republicans look bad, letting states ban all abortions at the state level wouldn’t even be the best way. The best way would be to let states opt out of Social Security or Medicare. At least 10 states would probably do it, and their states would have horrible elder poverty and Republicans would get destroyed at the ballot box.

But Republicans are not the only ones with unpopular policy ideas!

Perhaps the best equivalent example for Democrats is affirmative action, which they seem unanimously supportive of, and which is immensely unpopular. Pew thinks 73% of people oppose race or ethnicity being a factor in college admissions, and the General Social Survey puts opposition to racial preferences for hiring at around 75 or 80%.

Just like abortion was, affirmative action also happens to be enshrined by the courts, although that is likely to come to an end next year when the Supreme Court decides on Students for Fair Admissions vs Harvard and also Students for Fair Admissions vs University of North Carolina. If the Supreme Court gets rid of affirmative action, you will see an almost perfect mirror to the current abortion situation: the courts will make the issue salient; nearly all Democrats will make it loudly obvious they hold an extremely unpopular viewpoint; voters will get mad at them.

So I think the lesson from Kansas isn’t really new. You shouldn’t loudly talk about your unpopular views, and if it’s up to you, you should have the courts make it so that issue isn’t salient or even legal to legislate on. But I don’t think the lesson from Kansas is that social issues are actually the secret to winning elections. There is no secret to winning elections! Aside from taking popular positions, Democrats should center issues where Republicans hold very unpopular views. Republicans should center issues where Democrats hold very unpopular views. That’s politics.

1. Many are citing this WSJ poll as indication that Americans no longer favor 15-week abortion bans, at least if they do not have rape exceptions. I’m rather skeptical that decades of public opinion changed so dramatically in a couple months, in a non-temporary way (if at all). Usually, where public opinion changes a lot, it happens over years or decades, not months (think marijuana, gay marriage, and interracial marriage). But I think if Ron DeSantis, who just passed a 15-week abortion ban, gets crushed in his governor re-election, given how salient abortion is in politics today, that would prove it’s really toxic to support 15-week abortion bans. But nobody thinks that is going to happen and instead everyone thinks he is going to win handily even against a moderate former-Republican who was already governor once.