The End of Roe v. Wade Will Be Just the Beginning of the Fight Over Abortion
Last night, a friend of mine reached out to tell me, “I know what you’re going to be writing about tonight after the Roe vs. Wade decision broke.” After being in this business for so long, my first thought was, “Actually, that will be the LAST thing I write about because people will be talking about it EVERYWHERE.” On the other hand, this is a blog about American culture, and assuming the court actually does overturn Roe (which looks likely but is not a done deal until it’s a done deal), this will be one of the most important cultural moments of the last fifty years. So, this feels like something that deserves a column.
So far, most of the coverage has been focused on the short-term repercussions of the Roe. v. Wade decision being leaked. How will this impact the 2022 midterms? My best guess is it will help the Democrats at the margins but won’t change the strong Republican tilt we’re likely to see. Will they find the leaker? It’s hard to say definitively. In 2022, it’s POSSIBLE the person will want to be found to turn it into a book or a slot on MSNBC. How careful were they at covering their tracks? There are a lot of unanswered questions. Would abortion become illegal after Roe is overturned? The issue would be kicked back to the states, each of which could handle the issue in its own way. Some states already have plans in place.
Roe. vs. Wade was always little more than judicial activism masquerading as bad constitutional law. It was a “right” invented nearly out of whole cloth. As Alito noted in the draft:
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely, the Due Process Clause of the Fourteenth Amendment... Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U.S. at 979 (Sealia, J, concurring in the judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.”
Returning the issue to “the people’s elected representatives” is where it’s going to get really interesting because, believe it or not, getting rid of Roe vs. Wade may do surprisingly little to change the status quo. As David French notes in an article for paid subscribers at The Dispatch:
A 2019 Guttmacher Institute study estimates that reversing Roe would lead to only a 12.8 percent decrease in the total number of abortions. More than 87 percent of abortions would still occur. The reason is simple. Reversing Roe would leave state abortion laws intact, and the vast majority of abortions occur in states that strongly protect abortion rights. That means that most American women would not experience any real change.
Of course, liberals are demanding that the Senate get rid of the filibuster so that Democrats can make Roe vs. Wade the law of the land. Both Joe Manchin and Kyrsten Sinema are refusing to cooperate, which has been their default position. If, as expected, Republicans take control of the Senate in November, it wouldn’t be a surprise if there were pressure put on GOP Senators to jettison the filibuster in order to make abortion illegal nationwide. Getting rid of the filibuster for legislation would almost inevitably lead to the end of the country, so there’s no issue, even abortion, that would merit pulling the trigger. Enough Republicans in the Senate will realize that to keep it from happening on their watch.
This will lead to the abortion issue going back to the state level and it will quickly get messy and complicated. You see, up until now, the abortion fight at the state level has been mostly posturing because SCOTUS has over the long term shut down almost every attempted end-run around Roe vs. Wade. That’s no longer the case and states are going to actually be allowed to set policy on the issue – and the public’s opinions on the issue are much more ambiguous than most people seem to think. For example, look at some of these results from different polling agencies:
Gallup polls show Americans’ support for abortion in all or most cases at 80% in May 2021, only slightly higher than in 1975 (76%), and the Pew Research Center finds 59% of adults believe abortion should be legal, compared to 60% in 1995—though there has been fluctuation, with support dropping to a low of 47% in 2009.
The share of Americans in Gallup’s poll who say abortion is morally acceptable reached a record high of 47% in May, up from a low of 36% in 2009, and a Quinnipiac poll found support for abortion being legal in all or most cases reached a near-record high in September with 63% support.
If Roe is overturned: A January CNN poll found a 59% majority want their state to have laws that are “more permissive than restrictive” on abortion if Roe goes away, while only 20% want their state to ban abortion entirely (another 20% want it to be restricted but not banned).
Strongest support for abortion—within limits: An Associated Press/NORC poll in June found 87% support abortion when the woman’s life is in danger, 84% support exceptions in the case of rape or incest, and 74% support abortion if the child would be born with a life-threatening illness.
When abortion support drops: The further into the pregnancy, with AP/NORC finding 61% believe abortion should be legal during the first trimester, but only 34% in the second trimester and 19% in the third, and an April Wall Street Journal poll finding more Americans approve of 15-week abortion bans than disapprove.
Partisan split—but not in all cases: Democrats are statistically far more likely to support abortion rights than Republicans, with Quinnipiac finding in September that only 39% of Republicans believe abortion should be legal in all or most cases versus 89% of Democrats—though 70% and 76% of Republicans support exceptions for rape and incest and when the mother’s life is at risk, respectively.
So, 80% of Americans support abortion in “all or most cases,” but only 19% of Americans support abortion in the third trimester and more Americans approve of 15-week abortion bans than disapprove? How do you square that circle? Granted, some of these polls are undoubtedly politically tilted propaganda, but Americans are also clearly of two minds on abortion. Most Americans think it’s morally repellent, but they also get why someone would do it. People understand that it’s easy to do the right thing in the abstract, but when it’s a choice that will have major implications for your life that’s right in front of you, it’s harder to make the right choice.
As this issue moves back to the states, for the first time in 50 years, legislators are going to have to balance those moral concerns with political concerns while coming up with policies. Finding that proper equilibrium probably won’t happen overnight, either. Even many Republican states probably won’t ultimately end up with a maximalist position that makes abortion illegal even in the case of rape and incest. Furthermore, for good or ill, abortion will go from being a largely abstract debate (the Supreme Court has taken it out of our hands, what can we do) to something much more real and personal for people, like the debate over slavery. The abortion debate PROBABLY won’t lead to the kind of violence that morally similar debate did, but it is likely to sharpen the differences between red and blue America.
Getting rid of Roe vs. Wade? It’s something that should have been done a long time ago, but it’s not a cure-all. Sure, it will save SOME children from being murdered and fix the biggest piece of judicial activism in Supreme Court history, but given that abortion is an even greater evil than slavery, the right thing to do is to keep pushing for life.
I don't support a woman's right to choose to have abortions as a form of birth control. One abortion as a result of a mistake or gross irresponsibility is bad enough, but to have more than one is supremely immoral and without excuse.
In the case of verifiable rape and proven incest resulting in a pregnancy abortion should be an option, preferably as early as possible.
Leftist ideologues will not be happy unless abortions are free and available no matter the age of the child.
Thanks for this column; it is a fault line in many areas of life and politics. When I was in law school, which was a very left leaning place, we studied Roe a little, but even ardent supporters of the result were hard pressed to defend the legal reasoning of finding the right to abortion in the shadow of a penumbra of an unenumerated "right to privacy" in the Constitution. The fact that the court does not have the authority, under separation of powers, to create statutes out of whole cloth is one of the reasons why controversy over the result never ended. As far as stare decisis goes, the argument that "it stood for over 50 years so it should not be overturned" is unpersuasive, unless I guess you also think that Plessy v Ferguson, ca 1896 ("separate but equal") should not have been overturned in Brown v Board of Education in 1954? America was not designed to be controlled by an all-powerful federal government, and I wonder when the 10th amendment will be remembered and invoked?