Michele L. Swers*

After Dobbs: The Partisan and Gender

Dynamics of Legislating on Abortion in

Congress

https://doi.org/10.1515/for-2023-2016

Abstract: I examine the partisan and gender dynamics that shape Congressional

policymaking on abortion since the early 1990s. I demonstrate how the movement of

abortion from an issue that split the parties to a litmus test that defines what it

means to be a Democrat or Republican has impacted policymaking. I highlight the

players and will influence the direction of party strategy and legislating in the Post-

Roe environment.

Keywords: U.S. Congress, gender politics, abortion, Roe v. Wade, Dobbs v. Jackson

Women’s Health Organization

In September 2021, Carolyn Maloney (D-NY), the chair of the House Oversight Com-

mittee, called a hearing on “Examining the Urgent Need to Protect and Expand

Abortion Rights and Access in the United States.”

1

Roe v. Wade was under threat from

a new Texas law banning abortion at 6 weeks of pregnancy and the Supreme Court

Cammack was speaking for the mothers who decided to have their babies in difficult

*Corresponding author: Michele L. Swers, Georgetown University, Washington, D.C., USA,

E-mail: [email protected]

1 The hearing can be viewed at https://www.youtube.com/watch?v=0GGLVE4uvvo.

The Forum 2023; 21(2): 261–285

circumstances and the unborn children (Raman 2021). The hearing provides a

snapshot of each party’seffort to influence public opinion and the direction of

abortion policy as we enter the post-Roe era. In today’s Congress, abortion politics is

starkly partisan and gendered. With social conservatives a dominant force in the

Legislating on reproductive health in Congress focuses on two paths: efforts to limit

federal funding through the appropriations process and stand-alone bills to restrict

abortion or to codify the right to access abortion services. The early 1990s represent

an important inflection point in how Congress deals with abortion and set the stage

for the contemporary partisan conflict. Two Supreme Court decisions, Webster v.

Reproductive Health Services (1989) and Planned Parenthood of Southeastern Penn-

sylvania v. Casey (1992) reaffirmed the right to abortion found in Roe but allowed

states to pass restrictions that would not create an “undue burden” on the ability to

would chip away at 12 years of Republican executive actions to restrict abortion and

appoint judges who supported abortion rights to the Supreme Court. Described as the

“Year of the Woman,” the 1992 elections also brought more women to Congress,

particularly Democratic women. In the years since, a gender gap opened up in

women’s representation with Democrats electing more women than Republicans

(Elder 2021). Democratic women are the most aggressive proponents for abortion

rights.

Two years later, there was another major shift in the balance of power in

Washington that upended the equilibrium of abortion politics. The 1994 Republican

Revolution ended 40 years of Democratic control of the House of Representatives.

Shut out of the Clinton administration, pro-life groups turned to the Republican

majority in Congress. As Speaker, Newt Gingrich (R-GA) decided to pursue multiple

abortion policy riders on the must-pass appropriations bills, escalating the fight. The

National Right to Life Committee, the oldest pro-life organization, scored 25 House

covering abortion, and prevent women from utilizing their own private funds to

obtain abortions on overseas military bases (Ainsworth and Hall 2011; Shimabukuro

2022).

The Affordable Care Act also includes provisions to prevent the premium tax

credits and subsidies from being used to pay for insurance plans that cover abortion

(Shimabukuro 2022; Swers 2017). In 2010, Chris Smith (R-NJ), the longtime chair of the

House Pro-Life Caucus, first introduced H.R. 5939, the No Taxpayer Funding for

Abortion Act, a bill that codifies prohibitions of federal funding into law eliminating

the need for annual battles in the appropriations process. When Republicans took

over Congress in the 2010 Tea Party wave, this bill became one of the leadership bills,

the most consistent avenues for enacting abortion restrictions. More rarely, when

one party controls both Congress and the presidency, it has shepherded stand-alone

legislation into law. Republicans’ most high profile successes were passed during the

George W. Bush administration. The Partial Birth Abortion Ban Act bans late-term

abortions and the Unborn Victims of Violence Act created separate punishments for

harming a fetus, in addition to the person carrying the child, while committing a

federal crime. The law was seen as a potential step toward creating personhood

2 The bills that passed the House are HR 3, No Taxpayer Funding for Abortion Act (112th Congress)

and HR 7, No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2014

(113th Congress), 2015 (114th Congress), and 2017 (115th Congress). The bill is again designated as HR 7

rights for the unborn (Swers 2013). During the Clinton administration, Democrats

passed the FACE (Freedom of Access to Clinic Entrances) Act which sought to protect

abortion providers and patients from violent protests at abortion facilities (Swers

2002). In the contemporary Congress, characterized by tight electoral competition

ever, Democrats did not have a filibuster-proof majority of 60 votes, and without the

support of Joe Manchin (D-WV), they could not garner even a simple majority to

pass the bill through the evenly divided Senate (DeBonis and Roubein 2022). Going

forward, major policy change will require control of the presidency and Congress

with supermajorities in the Senate. As a result, lawmakers will continue to leverage

the must-pass appropriations bills and authorizations, particularly the National

Defense Authorization, which has a history of annual passage, to advance their

abortion-related policy goals.

Republicans, being pro-choice on abortion was one of the defining features of being a

moderate (Oldmixon 2005; Swers 2002). In research with Kelly Rolfes-Haase, I

examined House votes scored by the National Right to Life Committee (NRLC), the

organization with the longest history of scoring abortion votes, from the 103rd to the

3 The Freedom of Choice Act (HR 25 and S 25) was sponsored by key party leaders, Don Edwards

(D-CA) chair of the Judiciary Committee’s Subcommittee on Civil Liberties and Civil Rights in the

House and majority leader George Mitchell (D-ME) in the Senate. The bill was reintroduced in

115th Congresses (1993–2018). Figure 1 shows the percentage of votes cast in favor of

the pro-life position by Republican and Democratic men and women. Republican

women defected from the pro-life position on 50 % of the votes on abortion in the

Democratic controlled 103rd Congress (1993–94).

After Republicans took control of Congress in the 1994 Republican Revolution,

line with their male colleagues by the Obama presidency and today’ s Republican

men and women generally vote universally pro-life. Meanwhile, Democratic men

defected from their party to cast pro-life votes about 25 % of the time through most of

the George W. Bush administration. However, they largely fell in line when Demo-

crats took back control in the 110th Congress (2007–08). Just as Republicans vote

Figure 1: Percent support of the NRLC’s pro-life position by party and gender 1993–2018.

uniformly pro-life, since 2011 Democrats generally vote in lockstep supporting

abortion rights.

In the 1990s and early 2000s, when there was a contingent of members who

dissented from their party’s position on abortion, leadership sometimes had to put

ship saying, ‘What are you doing? We’re taking up too many abortion [votes] … and

he will have an opportunity to offer an amendment basically to replace or substitute ”

(Oldmixon 2005, 175). Thus, the pro-choice members were given the opportunity to

demonstrate their independence, however the outcome still reflected the prefer-

ences of the majority party caucus.

On the Democratic side, during the debate over President Obama’s signature

healthcare bill, a group of pro-life Democrats leveraged their numbers to compel

Speaker Nancy Pelosi (D-CA) to allow a vote on an amendment to prohibit federal

subsidies from being used to buy insurance plans that included abortion coverage.

While the language was softened in the Senate bill, President Obama still had to issue

Democrats could not get a majority of their caucus in the 50-50 Senate to support a bill

to reverse the Supreme Court’s decision by legislating a right to abortion (Karni 2022).

The complete polarization of the parties on reproductive health policy largely

occurred through replacement rather than conversion (Adams 1997; Karol 2009).

party’s position on abortion, while pro-life and pro-choice groups raise and spend

millions in independent expenditures to elect like-minded candidates (Crowder-

Meyer and Cooperman 2018; Ziegler 2022).

The small minority of long serving members who are out of step with their party

On the Republican side, the current Appropriations Committee chair, Kay

domestic and international family planning programs and the development of

RU486.

Up until the Dobbs decision, public opinion was remarkably static and ambiv-

alent about abortion. Gallup polling indicates that since 1976 the majority of the

public believes that abortion should be “legal only under certain circumstances.”

Meanwhile, less than one-third of the public thinks abortion should be “legal under

To move public opinion, the parties will also try to trespass on each other’s issues

by repurposing the other party’s rhetoric to support their own position (Holian 2004;

Jerit 2008; Sides 2006). For example, to counter accusations that pro-life policies harm

women, pro-life legislators and groups emphasize that restrictions need to be

women’s health, Republicans have difficulty countering Democratic family planning

initiatives. Indeed, a 2019 PRRI poll indicates that 77 % of the public, including 89 % of

Democrats and 64 % of Republicans, believe that government funded insurance

programs like Medicaid should cover the cost of birth control (PRRI Staff 2019).

Similarly, the Obama administration’s contraception mandate that requires em-

ployers to cover contraception as part of the required preventive health benefits

package is widely supported. A 2017 Kaiser Family Foundation poll found 68 % of the

public supports requiring private employers to cover prescription birth control for

their employees, including 81 % of Democrats, 68 % of Independents, and 54 % of

Republicans (Kirzinger et al. 2017).

allowed Republicans to avoid talking about women’s health and embrace an issue

frame more associated with the party (Swers 2017, 2018). The message reduced

support among Republicans and the Supreme Court later narrowed the mandate

based on religious freedom concerns. Demonstrating the potency of this messaging,

the party, Democratic women will be at the forefront of efforts to eliminate federal

funding restrictions.

Whereas Democratic women have long played a central role in their party ’s strategic

positioning and policymaking efforts on abortion, Republican women have evolved

from an ideologically divided cohort with limited influence on the party’s decision-

making to a prominent force in crafting party messaging and shaping policy on

abortion. Many of the Republican women serving in Congress during the Clinton

administration and through the presidency of George W. Bush were pro-choice.

Knowing that they were out of step with the social conservative base of the party,

pro-choice women largely tried to avoid public engagement of the issue to avoid

alienating colleagues whose support they needed on other priorities. Furthermore,

priations and authorization bills throughout the Clinton presidency. Jan Meyers (KS)

and Connie Morella (MD) both offered amendments in the 104th Congress (1995–

1996) to prevent Republicans from reinstating the Mexico City policy which denies

international family planning funds to groups that provide or lobby for abortion

access.

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Otherwise, the moderate pro-choice women let male colleagues with seats

on relevant committees offer pro-choice alternatives. They quietly voted for these

amendments and lobbied behind the scenes for the party to take up fewer abortion

riders (Dodson 2006; Swers 2018). Through the Bush administration, the dwindling

Clinton and Bush administrations. Like their House counterparts, neither the pro-

choice or pro-life leaning female Senators wanted to take a leadership role on the

issue. For example, Elizabeth Dole (NC), the most pro-life senator elected before the

2010 Tea Party wave, refused a leadership request to join the Judiciary Committee

abortion in their judicial nomination votes. It is important for party members to

support the President’s nominees and the public does not generally tie a senator’s

vote for a nominee to the decisions they will make years later on the court. However,

if a senator opposes their president’s nominee, they will immediately face backlash

from colleagues and groups aligned with the party and could invite a primary

challenge (Swers 2013). Thus, among the women, only Murkowski has ever voted

against a Republican president’s nominee to the Supreme Court. She opposed Brett

Kavanaugh based on the controversy surrounding sexual assault allegations against

the justice and not his abortion stance (Cheney 2018).