The lessons of Rand Paul's pro-life victory

Barely a week after Indiana's ill-fated religious freedom fight had people eulogizing social conservatism, Rand Paul picked a fight on abortion — and won.

When a reporter cited the Democratic National Committee before asking Paul if there were any exceptions to his opposition to abortion, the GOP presidential candidate challenged the reporter to ask if there were any exceptions to the DNC's support for legal abortion.

DNC chair Debbie Wasserman Schultz replied with a press release, but didn't exactly list any exceptions to her position.

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Conservatives celebrated Paul for being the rare Republican to finally go on the offensive on abortion rather than seem embarrassed by his position. And after an initially hostile press reaction to Paul's comments, mainstream journalists started comparing it to Ronald Reagan's "I paid for this microphone" moment in the 1980 presidential campaign. Even some liberals started getting into the act.

Why? Because lots of people are actually conflicted about abortion.

Abortion really does end the life of a fetus, just like pro-life Americans say. And unwanted pregnancy really is a major hardship for women, just like pro-choice Americans say. Both sides make a legitimate, intellectually coherent case — and the millions upon millions of Americans who live far from our political poles understand this.

Supporters of legal abortion frequently focus on the hard cases. They tend to emphasize victims of rape and incest, women and fetuses with serious health problems, and the impact some abortion restrictions might hypothetically have on widely used forms of birth control. There's an old saying that hard cases make bad law, but pro-choice activists have found them a more effective defense of their preferred policies than an unqualified endorsement of elective abortion.

Yet their side has its own hard cases. Rand Paul isn't the first person to point this out.

During the 1990s, the pro-life movement shifted its tactics. After years of demanding a constitutional amendment that would either outlaw abortion or kick abortion policy back to the states by overturning Roe v. Wade, they began advocating incremental legislation. Their biggest legislative victory prior to that point was the Hyde amendment barring Medicaid-funded abortions. So why not try similar measures?

These included bans on other types of taxpayer funding for abortion, laws requiring parental notification or consent for minors seeking abortions (usually with a judicial bypass option), and outlawing partial-birth abortion. (Partial-birth abortion — frequently put in scare quotes by media outlets who recognized it as an anti-abortion phrase — describes a particularly grisly late-term abortion procedure that involves the partial delivery of the fetus.)

Barbara Boxer and Rick Santorum once had a memorable exchange on the Senate floor about how much of a baby would have to be outside of the womb before it received legal protection. Boxer initially suggested that full legal rights begin "when you bring your baby home," prompting Santorum to ask "if the baby's foot was inside the mother and the rest of the baby was outside, could that baby be killed?" National Review's Ramesh Ponnuru later described this back-and-forth as "a deadly game of Hokey-Pokey."

But this debate over partial-birth abortion generally coincided with a broader anti-abortion trend in public opinion. Why? Because for once, supporters of legal abortion were on the defensive about a hard case.

In general, support for legal abortion is strongest in the earliest stages of pregnancy and lowest in the later stages. Defending late-term abortion is unpopular — just like opposing legal abortion for rape victims.

Wendy Davis' position on abortion is not much more popular than Todd Akin's. Yet, as Rand Paul might remind us, Akin faced (and flubbed) much tougher abortion-related questions than Davis did.

More than 70 percent of Americans tell Gallup they support at least some abortion restrictions. I haven't seen recent polling that tests support for legal abortion for any reason throughout pregnancy with at least some public funding available, but I doubt it would be appreciably more popular than no-exceptions opposition to abortion.

Since 1988, every Republican presidential nominee has favored exceptions for rape and incest. (The only exception since abortion became a contested political issue was Reagan.) Since 1993, Republicans have accepted exceptions for rape and incest in the Hyde amendment.

Where will the next Democratic presidential candidate stand on the hard cases? They might hide behind misconceptions of what Roe v. Wade actually allows or try to come up with late-term abortion measures with extremely broad exceptions.

But thanks to Rand Paul, at least they may finally be asked.