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Republicans took a big political risk on abortion in the Fox debate

 Anti-abortion activists hold a rally opposing federal funding for Planned Parenthood in front of the US Capitol July 28, 2015, in Washington, DC.
Anti-abortion activists hold a rally opposing federal funding for Planned Parenthood in front of the US Capitol July 28, 2015, in Washington, DC.
Olivier Douliery/Getty Images

For Democrats, the most important thing that happened at Thursday's Republican presidential debate had nothing to do with Donald Trump. It was the way the candidates raced to stake out tough positions on abortion that could hurt the GOP in the 2016 general election.

Wisconsin Gov. Scott Walker said there's no case in which an abortion is medically necessary, Florida Sen. Marco Rubio said he does not support rape and incest exceptions to laws restricting abortion, and former Arkansas Gov. Mike Huckabee said a simple change in the law could make an outright abortion ban constitutional.

There is agreement across the political spectrum that Walker, Rubio, and Huckabee distinguished themselves as hard-liners on abortion. That will assuredly help them with the Republican primary electorate. But many Democrats and political analysts believe they have boxed themselves into an extreme position that will scare voters who want to protect access to abortion or expand it.

In a larger sense, the return of abortion politics to the center of a presidential campaign is as potentially disastrous for the Republican Party writ large as it is satisfying to social conservatives. The fundamental problem for the GOP is that it is sprinting to the right on a major social issue that has tripped up its candidates over and over again. (Efforts to narrow abortion exceptions have led Republicans to debate "forcible rape," "legitimate rape," and now the value of a pregnant woman's life relative to her unborn baby.) The recent controversy over videos showing Planned Parenthood officials discussing the price of fetal tissue has only invigorated social conservatives to make abortion rights a bigger issue.

At the same time, with a pro-choice woman likely to lead the Democratic Party in 2016 and the future composition of the Supreme Court possibly hanging in the balance in this election, Democrats are going to do everything in their power to persuade voters that the Republican nominee is too extreme on abortion rights. On Thursday, Rubio, Walker, and Huckabee probably helped them make that case.

To understand the current debate, you have to understand the Hyde amendment

The modern debate on abortion is framed around the Supreme Court's 1973 Roe v. Wade decision, which concluded that "the right of personal privacy includes the abortion decision" but that the right "is subject to some limitations." In federal law, those limitations tend to center around the Hyde amendment.

Three years after Roe, then-Rep. Henry Hyde (R-IL) wrote a "rider" to the annual appropriations bill that funds federal health programs, including Medicaid. His amendment banned federal spending on abortion through programs funded by that bill, without exception. That caused an impasse between the House and the Senate, which was eventually resolved through compromise language that created an exemption for women whose lives were endangered by their pregnancies.

Over the years, depending on which party has held the most power in Washington, the contours of the amendment have changed. Democrats won new exceptions in cases of rape and incest, but those exceptions were later removed because President George H. W. Bush vetoed a bill over their inclusion. When President Bill Clinton took office in 1993, Hyde made the political calculation that he would lose his amendment altogether if he didn't include the rape and incest exceptions.

"I didn't think the votes were there anymore for a straight ban on abortion funding," he said, according to an excellent history of the Hyde amendment that Julie Rovner wrote for NPR in 2009. The amendment, with the rape and incest exceptions, survived on the strength of bipartisan support.

For nearly two decades after Hyde reinstated the rape and incest exceptions, there was general agreement in the political class that the public will support a broad prohibition on federal funding for abortion so long as victims of sexual violence and women who are in danger of losing their lives to pregnancy aren't denied access to abortion because they can't afford the procedure without financial assistance.

But anti-abortion activists, particularly those motivated by religious beliefs, are not satisfied by that compromise. Ultimately, they want a Republican president to appoint Supreme Court justices who would vote to overturn the Roe decision. While they wait for that, they're focused on a variety of legislative efforts to further limit abortion and weaken Planned Parenthood.

Marco Rubio didn't flip-flop on abortion, but he did take a position that could hurt him in a general election

Rubio has co-sponsored a series of bills that would restrict access to abortion but that include exceptions for rape, incest, and the life of the mother. For example, he is a co-sponsor, along with fellow Republican presidential candidates Ted Cruz, Rand Paul, and Lindsey Graham, of a measure that would prohibit federal funding for insurance plans that cover abortion. Section 308 of that bill carries the rape and incest exceptions, a nod to the political difficulty of getting even some conservatives to agree to drop them.

rape, incest, life-of-the-mother exceptions in S 51

From S 582, the "No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2015."

On Thursday, Fox's Megyn Kelly asked Rubio about the exceptions:

KELLY: If you believe that life begins at conception, as you say you do, how do you justify ending a life just because it begins violently through no fault of the baby?

RUBIO: Well, Megyn, first of all, I'm not sure that that's a correct assessment of my record. I would go on to add that I believe all

KELLY: You don't favor a rape and incest exemption?

RUBIO: I have never said that, and I have never advocated that.

That was a surprise to a lot of people familiar with Rubio's record who were watching the debate, because he's co-sponsored bills with the exceptions.

What Rubio was saying is that he personally doesn't believe abortion is justified even in cases in which a woman was raped or was the victim of incest, and that he has supported bills with the exceptions because they are the more politically viable way to reduce the number of abortions.

That moves him to much riskier political ground. Here's why: Without exceptions in cases of rape and incest, the vast majority of Americans oppose restrictions on abortion. In August 2012, just before the last presidential election, a CNN/ORC poll found that 83 percent of voters, including 76 percent of Republicans, believed that abortion should be legal when a pregnancy is caused by rape or incest.

CNN/ORC poll abortion 2012

This CNN/ORC poll from 2012 shows just how out of step Rubio is with most Americans on the question of whether abortions should be legal in cases of rape and incest.

CNN/ORC poll, Aug. 22-23, 2012

While many Americans support certain restrictions on abortion with the exceptions, Rubio's position puts him in the small minority who believe women who become pregnant through rape and incest should be compelled to carry babies to term. Democrats think he just made himself a much easier target if he wins the Republican nomination.

What Scott Walker was talking about when he said there are alternatives to abortion when the woman's life is in danger

Walker gave the most revealing and most overlooked answer to an abortion question in the GOP debate. Walker, who signed a bill with a life-of-the-mother exemption, has said he objects to that exception and the others. Kelly pressed him on what that means for pregnant women whose lives are at risk.

KELLY: Would you really let a mother die rather than have an abortion, and with 83 percent of the American public in favor of a life exception, are you too out of the mainstream on this issue to win the general election?

WALKER: Well, I'm pro-life, I've always been pro-life, and I've got a position that I think is consistent with many Americans out there in that I believe that that is an unborn child that's in need of protection out there, and I've said many a time that that unborn child can be protected, and there are many other alternatives that can also protect the life of that mother. That's been consistently proven.

Doctors have often said that there are cases in which abortions are medically necessary to save women's lives. So what's Walker talking about?

He essentially subscribes to the "double effect" doctrine, a well-established line of argument that governs how Catholic leaders think about the definition of abortion — and the desire to preserve the life of the mother and the viability of the fetus.

The US Conference of Catholic Bishops, in its "Ethical and Religious Directives for Catholic Health Care Services," makes a distinction between procedures designed to terminate a pregnancy to preserve the life of the woman and those for which the termination of the pregnancy is an unintended consequence of treating the woman.

Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.

That is, the bishops believe intent matters.

Critics accuse anti-abortion hard-liners of putting the life of the mother second, while Catholic leaders argue that they see the lives as having equal value.

The American public is clearly on the side of the life-of-the-mother exception. The 2012 CNN/ORC poll found that 88 percent of voters, and 85 percent of Republicans, believe abortion should be legal when the mother's life is at risk. About 80 percent of Americans say abortion should be legal under all or some circumstances, according to Gallup.

Abortion legal Gallup

Gallup polling over time.


Huckabee's shortcut to outlawing abortion

It would be extremely difficult to amend the Constitution to outlaw abortion without completely remaking the American political map. But Huckabee articulated a view, popular in conservative circles, that there's a simple legislative shortcut.

Sen. Rand Paul, one of Huckabee's rivals for the Republican nomination, is the sponsor of "personhood" legislation that would define a fetus as a human being. If that were to become law, conservatives argue, the fetus would be covered under constitutional protections against the US government depriving any person of life without due process of law. Ironically, it's the same "due process" clause of the 14th Amendment on which the Roe decision was predicated.

Here's how Huckabee put it in an exchange with Chris Wallace during the debate:

WALLACE: Governor Huckabee, like Governor Walker, you have staked out strong positions on social issues. You favor a constitutional amendment banning same sex marriage. You favor a constitutional amendment banning abortions, except for the life of the mother. Millions of people in this country agree with you, but according to the polls, and again this is an electability question, according to the polls, more people don't, so how do you persuade enough Independents and Democrats to get elected in 2016?

HUCKABEE: Chris, I disagree with the idea that the real issue is a constitutional amendment. That's a long and difficult process. I've actually taken the position that's bolder than that. A lot of people are talking about defunding Planned Parenthood, as if that's a huge game changer. I think it's time to do something even more bold. I think the next president ought to invoke the Fifth and 14th Amendments to the Constitution now that we clearly know that that baby inside the mother's womb is a person at the moment of conception.

In the Roe decision, the court found that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." But the court also acknowledged that "if this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus's right to life would then be guaranteed specifically by the Amendment."

As the New Yorker's Ryan Lizza reported late last year, even some of Paul's supporters are concerned that his approach would alienate women and moderates because it would end up outlawing familiar forms of birth control.

Democrats see the Republican shift on abortion as a boon in the 2016 election

Democrats have been accusing Republicans of waging a "war on women." They see the GOP's increasing stridency on abortion — and the way it has revealed the gross insensitivity of some Republicans to rape victims — as a factor that will hurt Republicans in the 2016 elections. And Republicans have been playing into their hands in the last several election cycles.

Ever since they won control of the House in 2011, Republican leaders have tried to find ways to satisfy anti-abortion activists without alienating moderate Republicans and independents. That's made for tricky politics even within the party.

House GOP leaders were forced early that year to drop language excepting "forcible rape" from a bill restricting abortion. The word "forcible" had been added to the standard exemption in an effort to create a legal distinction between types of rape. In August 2012, then-Rep. Todd Akin, who was running for a Missouri Senate seat, dealt a painful blow to the party by using a similar construction — "legitimate rape" — to argue that "the female body has ways to try to shut the whole thing down."

And earlier this year, Republican leaders had to delay consideration of a bill designed to prevent abortion after the 20-week mark in a pregnancy because of objections from women lawmakers and GOP moderates. The problem: Women seeking abortions because their pregnancies resulted from rape would have had to report the rape to authorities before having abortions after the 20-week threshold.

From a policy standpoint, Democrats worry about the possibility that abortion could come under attack. But from a political lens, they couldn't be happier with what they see: a Republican Party moving to more extreme ground before the 2016 election.

VIDEO: Marco Rubio discusses abortion at the Republican Debate