I drew some parallels, the other day, between the way the rise of abortion as a political issue changed conservatism and the Republican party and the way I think the rise of immigration as an issue is changing politics today. I suggested that while a small percentage of Republican voters list immigration as the issue most important to them, the issue is playing a larger role in Republican politics than that number by itself would indicate. I theorized that certain positions on immigration — e.g., what a candidate thinks about letting illegal immigrants become citizens — are turning into an indicator for many voters of how conservative a candidate is.


Mickey Kaus offers some further thoughts. He doesn’t buy my theory. He offers a plausible theory of his own for why the issue seems to have more importance than the poll numbers would indicate: The Republican candidates have bigger and more easily understood differences on immigration than on higher-ranking issues, such as the economy and terrorism.

Kaus closes on a note of contrast:

Here’s a big difference between the immigration litmus test and the abortion litmus test: When the line was drawn (in both parties) on abortion, the Dems wound up with a rough working majority on their side — something we were in the process of discovering in state legislatures when the Supreme Court short-circuited democracy in Roe. On immigration, if the line is drawn anywhere near where it now seems to be (e.g. no “amnesty first,” if at all, and no big increase in overall legal immigration levels) Republicans may find a majority on their side (emphasis in original).

Whether or not Kaus proves to be right about how the politics of immigration will play out, I think he is wrong to accept the conventional view about abortion in the 1970s. Russell Hittinger, relying on David Garrow’s celebratory history of Roe v. Wade, has summarized the state of play in state legislatures in the months and years before Roe:

In 1967, “reform” measures, usually concerning therapeutic exceptions, were turned aside in Arizona, Georgia, New York, Indiana, North Dakota, New Mexico, [and] Nebraska. . . . In 1969, such bills failed to emerge from committee in Iowa and Minnesota, and were defeated outright in Nevada and Illinois. In 1970, exceptions based on therapeutic reasons were defeated in Vermont and Massachusetts. In 1971, on the eve of Roe v. Wade, repeal bills were voted down in Montana, New Mexico, Iowa, Minnesota, Maryland, Colorado, Massachusetts . . . Connecticut, Illinois, Maine, Ohio, and North Dakota. In 1972, even as Roe was under consideration by the Supreme Court, the Massachusetts House by a landslide vote of 178 to 46 passed a measure that would have bestowed the full legal rights of children on fetuses from the moment of conception. At the same time, the supreme courts of South Dakota and Missouri upheld their states’ anti-abortion laws. It was surely telling that during the very month that Justice Blackmun finished the draft of his Roe opinion, 61 percent of the voters in Michigan and 77 percent in North Dakota by referenda voted down repeal. To be sure, reformers and repealers won a few legislative victories prior to Roe. In 1967, Colorado liberalized its law. But it placed restrictions on abortion that were much more severe than anything permitted by post-Roe federal courts. Reform legislation also passed in North Carolina [1967], but with the rejection of mental health exceptions. California (1967), Georgia (1968), and South Carolina (1970) changed, but did not repeal, their abortion laws. The two most significant legislative victories for the repealers took place in 1970 in New York and Hawaii. These victories, however, were narrow and contentious, and did not approximate the percentages of pro-life victories in other states at the same time. At the time of Roe, there was evidence that the tide of opinion in New York had shifted back toward laws protecting the unborn.


I quoted that passage from Hittinger in my book about the right to life; as here, I used ellipses and brackets to correct minor mistakes. I also noted that he may have overstated his case with respect to California and North Carolina. But I don’t think the evidence bears out the now-dominant view that abortion rights were moving from triumph to triumph in the legislatures before Roe. Perhaps decades from now we will all misremember today’s immigration debate, too.