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What if Roe is overturned.


The New Republic's editorial line on abortion has always had the virtue of contrarianism. If Roe v. Wade were ever to topple, this magazine argues, it would be bad news for the pro-life Republicans who hate Roe--and good news for the pro-choice Democrats who have fought to keep it. Once the issue migrates from the courts to the political arena, Republicans would no longer have the luxury of an abortion politics that consists of slogans and symbols and handed-down opinions. Republican politicians would finally be forced either to support new bans on abortion (thus alienating the political middle) or stand down (thus alienating their pro-life base). Either way, the costs for the GOP would be high. At least, that has been the counter-intuitive TNR scenario.

Well, congratulations, TNR. Your argument is no longer so contrarian. Pundits now widely share the opinion that the end of Roe would be "a disaster for the Republican Party," as National Journal's Stuart Taylor Jr. recently put it. Morton Kondracke recently wrote in Roll Call that "Republicans should thank their lucky stars" that the Court is unlikely to revisit Roe. But, before we further enshrine this strain of conventional wisdom, let's consider the shape of a post-Roe world a bit more carefully. The New Republic's theory is, if I can be so bold, a mite too convenient for complacent pro-choicers. The truth is that the public is not as pro-choice as this magazine would like to believe, nor are pro-lifers so tactically inept.

Let's begin with The New Republic's assumptions about public opinion. It has some facts on its side. A large majority supports Roe v. Wade. But the polls on Roe are somewhat misleading. They reflect public hostility to drastic change on abortion policy, as well as public misunderstandings about how drastic reversing Roe would be. Many people think it would automatically ban all abortions nationwide, when it would really only give legislators and voters the power to set abortion policy.

TNR is on firmer ground in pointing out that most Americans tell pollsters that they believe abortion should generally be permitted in the first trimester. But a very different picture emerges from other polls. Strong majorities think that abortion should be permitted in cases of rape, incest, threats to the mother's life, and severe fetal abnormality. But there aren't clear majorities for any other types of abortion. Indeed, polls have regularly found that small majorities of the public--including small majorities of women--believe that abortions for other reasons should be prohibited. Gallup has also consistently found that a large majority of the public thinks abortion should be either illegal or legal "only in a few circumstances."

I am aware of only one poll that allowed respondents to choose options that included both what one might call the moderate pro-life option (prohibiting abortion with exceptions for rape, incest, and the mother's life) and the moderate pro-choice option (allowing abortion for any reason in the first trimester). This poll was conducted by Richard Wirthlin, who is, admittedly, himself a pro-lifer, in November 2004. He found 55 percent taking either moderate or hard-core pro-life positions, compared with 40 percent on the pro-choice side. If that's in the ballpark, you can expect more support for restrictive laws than the polls TNR likes to cite.

But the post-Roe world is likely to be messier than any poll would predict. There are many scenarios to consider. In one, abortion becomes grist for Congress. According to most pundits, this would be the worst outcome for Republicans, the one in which their politically unpalatable choices would be starkest. These pundits imagine the Republican base forcing its congressmen to pursue a maximalist ban on abortion. That is certainly a possibility. Pro-life legislators in South Dakota weren't even willing to wait for Roe to go before trying to ban abortion.

Honesty, however, should compel TNR to admit that pro-choicers have also been known to overreach. It was their insistence, in 1993 and 1994, that the Freedom of Choice Act include public funding of abortion that stymied the legislation. Most pro-lifers, meanwhile, have embraced an incrementalist strategy--pushing for small-bore legislation like the ban on partial-birth abortion rather than a Human Life Amendment to the Constitution--over the last decade.

Maybe, then, it would be Democrats who would be stuck with an uncomfortable calculus: Do they please a liberal base that wants to keep late-term abortions legal or a general public that doesn't? The Supreme Court has required states to allow abortions even late in pregnancy to protect a woman's emotional health. There are very few states--there may be no states--that would enact a similar law. Existing abortion law is sufficiently liberal that the pro-choice side can only lose ground in democratic votes. You can criticize the pro-choice insistence that this issue be kept in the courtroom for any number of reasons, but you can't say it's irrational. In other words, it's not just pro-life politicians whom the Supreme Court has shielded.

But this scenario isn't the most likely outcome. America's federalist system ensures that. With Roe gone, much of the abortion debate would move away from Washington, though it would not leave D.C. entirely. There would still be judicial confirmation battles: Pro-choicers would demand justices who would reinstate Roe, and pro-lifers would fight them. But neither side would likely have enough strength to impose its policy nationally. Some congressmen would seek a compromise for the whole country--requiring all states, for example, to allow first-trimester abortion but to prohibit later abortions. But such compromises would probably fail. Pro-lifers would want to retain the option to pursue more stringent South Dakota-style prohibitions, and pro-choicers would want states like California to preserve looser laws. Other states' rights-minded congressmen would think a federal policy unwise, and some would want to kick the issue back to the states to continue avoiding any responsibility for the issue. The safe bet is for a congressional stalemate.

Abortion foes, like these marchers protesting the twenty-fifth anniversary of Roe v. Wade, won't forfeit a winning political issue if Roe is overturned.

So most of the action would be in the state legislatures. Either side could overreach in individual state legislatures, but sweeping nationwide change would be off the table. Voters would therefore have less reason for anxiety about Republican anti-abortion zealotry. Neither side's activists would have the incentive that exists today to impose rigorous tests of commitment on presidential candidates. If, after a while, it became clear that the federal courts were going to stay out of abortion policy, pro-lifers would cease to care as much if the Republican nominee disagreed with them. The debate over abortion could become, in this respect, like the one over evolution. Large numbers of Americans are passionate on both sides of the debate, and it flares up in various localities. But there is not much national policy on it, and politicians in Washington don't have to spend much time on it.

Local politicians, meanwhile, would adapt to local conditions. In strongly pro-choice jurisdictions, most Republican politicians would either adopt pro-choice views or temper their pro-life ones. Most Democratic politicians would do the same in strongly pro-life areas. They do this already, of course, but, in a post-Roe world, they would not have to worry as much about the effect of their abortion views on their national ambitions within their parties. It's a near-perfect solution for Republicans: The base would be enthused, since it could more comfortably win discrete policy victories in legislatures. But pro-choice Republicans could more comfortably vote for Republican candidates, especially candidates for federal office.

Thus far, we have been considering the consequences of a straight reversal of Roe. But it's more likely that the Supreme Court would repeal Roe in installments. The current Court might be willing to allow prohibitions on partial-birth abortion, for example. A future Court, with new anti-Roe appointees, might later conclude that its abortion jurisprudence was unworkable and get out of the inherently subjective business of deciding what constitutes an impermissible "undue burden" on the right to abortion.

Judicial gradualism might cause pro-life politicians some short-term political heartburn. The Court would be, for some period of time, poised to strike down Roe without having actually done so. That would maximize fears--on the part of both pro-choice voters and pro-life politicians--of what the consequences of repeal would be. But what's more important is that state legislatures would regain lawmaking authority over abortion bit by bit, probably starting with the ability to impose the most politically popular regulations. In such circumstances, the pro-life movement would hardly lose its fervor and political raison d'être.

This is how the Planned Parenthood v. Casey decision in 1992 played out. Roe was reaffirmed by a five-to-four vote but modestly scaled back. Pro-lifers, who had expected a reversal of Roe, were demoralized, and pro-choicers were galvanized. Since then, however, pro-lifers have used the increased room to maneuver provided by Casey to put pro-choicers on the defensive. It's because of Casey that most states have enacted informed-consent laws, for example.

Pro-lifers who are incrementalist in strategy and moderate in tone would, in short, be positioned to do quite well after Roe fell, and the Republican Party would have enough flexibility to prosper. The theory that pro-lifers would be dealt a stunning setback by the realization of their fondest goal is interestingly counterintuitive, and it has become a shibboleth for sophisticated pundits. But it's probably wrong.

This article originally ran in the May 1, 2006, issue of the magazine.