6 Theses on the Imminent End of Roe
It appears that at some point in the next two weeks, the Supreme Court will hand down a decision in Dobbs v. Jackson Women's Health Organization overturning Roe v. Wade, the landmark 1973 decision that established a constitutional right for women to choose an abortion. Assuming that happens, I will surely return to the decision and its consequences at numerous points over the coming weeks and months. For my first stab at making sense of its import and implications, I offer today 6 theses about the imminent end of Roe.
Thesis 1: We Could Get a Moderate Status Quo on Abortion from Overturning Roe, but We Won’t. I often wonder, when reading polls purporting to show strong opposition to overturning Roe, how many of the respondents understand that the decision itself won’t produce new onerous restrictions or outright bans on the procedure. Where Roe precludes many such restrictions and bans, eliminating it merely allows them and doesn’t require them. One could imagine a United States in which the end of Roe brought the country into closer alignment with Europe on the issue, with nearly all states opting to keep it legal and easily accessible through first 12 or so weeks of pregnancy (when most abortions take place) and then imposed restrictions and bans shortly after that, except for the rarest of emergencies that endanger the life of the mother. That’s what the preponderance of public opinion, stuck in the muddled middle on the issue, would favor. But that’s not what’s going to happen, because on many issues (very much including this one) the U.S. has become a country ruled by ideological purists on the extremes of public opinion. Many blue states have already moved toward legalizing abortion-on-demand throughout the whole of pregnancy, and Dobbs will only accelerate the trend. Many red states, meanwhile, will seek to outlaw the procedure altogether. What that will give us is the inverse of the moderate European status quo: One America will permit abortions long past viability while another America will attempt to force women to carry unwanted pregnancies to term against their will.
Thesis 2: Overturning Roe Isn’t Normal. Once fundamental rights are extended, they are not typically withdrawn. There was no constitutionally protected right to choose an abortion prior to 1973. Then such a right was pronounced by the high court, and for the next 49 years the female half of the population could count on it being recognized and protected. And now we’re on the verge of this right vanishing into thin air. That isn’t the way things usually work in a liberal democracy, and it runs smack up against what might be called progressivism’s philosophy of moral history, which holds that the number and scope of rights only expands over time, as the liberty of more and more people and groups come to be protected by the liberal state. In response, many pro-life conservatives would say they are merely fighting for those same protections to be extended to the unborn, making their cause fundamentally a liberal one. But of course, extending rights to the unborn requires withdrawing them from women, a shift most pro-lifers consider self-evidently justified and not at all a loss to lament. In any event, none of this is normal.
Thesis 3: Overturning Roe Raises Reasonable Concerns About the Fate of Other Rights Extended Since the 1960s. We’ve already started to hear worries among liberals and progressives about Dobbs being followed by future decisions that undermine or overturn cases establishing a constitutional right to same-sex marriage (Obergefell v. Hodges, 2015), striking down bans on sodomy laws (Lawrence v. Texas, 2003), and even asserting a right to privacy and access to contraception (Griswold v. Connecticut, 1965). Conservatives, including Justice Samuel Alito himself in the leaked draft of his majority opinion in Dobbs, have responded to these concerns by dismissing them with an argument that boils down to saying Don’t be silly, this case is just about abortion. Nothing about what the court is doing to Roe applies to anything else. This is risible. Read the late Justice Antonin Scalia’s blistering dissents in Obergefell, Lawrence, and the 1992 case that upheld Roe (Casey v. Planned Parenthood), along with the late Robert Bork’s scathing appraisals of Roe and Griswold, and you will see two things: furious loathing of this line of cases among revered conservative jurists, and extremely consistent arguments about why all of them were wrongly decided and deserve to be overturned. Now that we (apparently) know the court’s conservative majority is willing to do exactly that with Roe, why would they stop there? I have yet to hear an honest, principled answer to that question from anyone on the right.
Thesis 4: We Can’t Yet Know the Political Consequences of Overturning Roe. Many Democrats seem confident that Dobbs will reshape the midterm election dynamic, turning women (even more) strongly against the GOP. But I’m not so sure, for reasons wrapped up, again, with the fact that overturning Roe, in itself, won’t restrict or outlaw abortion. It will only be restricted or outlawed in states with so-called trigger laws that will go into effect as soon as Roe is overturned or with newly passed restrictions. Those will all be in red states where Democrats are badly outnumbered and many women are pro-life. In deep-blue states, by contrast, nothing at all will change after the decision is handed down. Women passionately committed to the pro-choice cause will be aware of what’s happening to women in red states and donate and vote accordingly, but they were presumably going to be voting for the Democrats already. The question is what less committed women will do. They’re the ones the party will need to flip to improve Democratic chances in November, and I’m not convinced they will be moved to do so by stories about the plight of women in states hundreds or thousands of miles away, especially when inflation is putting economic worries front and center in their minds.
Thesis 5: Overreaching by Republicans Could Blow Up in Their Faces. Underlying Theses 1 and 4 is an assumption, borne out by polling, that there are fewer people on the pro-life and pro-choice extremes than in the muddled middle, but that the extremes care much more about the issue and so punch quite a bit above their weight within the two parties. But the outsized power of the extremes can backfire. Not only do many red states have longstanding trigger laws on the books that will greatly restrict or ban abortions the moment Dobbs is announced; and not only have many other red states passed new laws in anticipation of a newly supportive Supreme Court allowing them to stand. Several of the latter states have also empowered private citizens (instead of prosecutors) to enforce these laws through the filing of lawsuits against anyone violating them. The intent of these mechanisms, accurately dubbed “bounty-hunter” provisions by critics, is to evade judicial oversight by depriving potential plaintiffs of standing to seek relief from courts. So far, the tactic has worked. Even worse, a pro-life Missouri state representative introduced a proposal last December that would have added a provision to the state’s abortion ban empowering citizens to sue anyone who seeks to procure an abortion in another state. The proposal didn’t receive a vote, but one like it could in the future, in Missouri or elsewhere, despite the fact that it would infringe the freedom of interstate travel and effectively gut the jurisprudence of federalism, which denies the legitimacy of extraterritorial criminal law. (Only federal law can apply beyond the bounds of a single state.) Then there are the pro-life movement’s hopes for a federal ban on abortion and/or a sea-change in interpretation of the 14th Amendment that extends personhood and the Equal Protection Clause to fetuses. Any or all of these developments could provoke a backlash that moves previously apathetic people in the muddled middle from relative indifference to outrage.
Thesis 6: Overreaching by Democrats Could Cancel Out Any Political Advantage. As Matthew Yglesias has noted in Slow Boring, his excellent Substack newsletter, Democrats (including President Biden) have decided to respond to the looming Dobbs decision not by staking out a moderate and maximally popular position but by defending the maximalist position favored by pro-choice activists. That could have the effect of repelling the many voters who reject Republican efforts to ban abortion in the first trimester but who also don’t want late-term abortions to be allowed. And then there are the slew of attacks against pro-life crisis pregnancy centers—16 acts of arson or vandalism—since the Dobbs leak in early May. These haven’t been given much coverage in the mainstream media or attention by the Biden administration, but they are acts of pro-choice terrorism undertaken by ideological radicals. They are every bit as lawless as attacks on abortion clinics by pro-life extremists, and Democrats should be denouncing them clearly and loudly. If they don’t, they will eventually pay a painful political price.
Eyes on the Right is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.