What Comes After the End of the Roe Era?
The culture wars were already cranked up to somewhere around DEFCON 2 before the leak of Supreme Court Justice Samuel Alito’s draft majority opinion completely overturning Roe v. Wade. Whether the opinion—reportedly supported by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—will reflect the ultimate outcome of Dobbs v. Jackson Women’s Health Organization remains to be seen; it may have already been revised in the months since it was circulated among the justices in February. Most commentators theorize that the leak was intended to galvanize the opposition—an effect already achieved—perhaps with the aim of pressuring one of the justices in the anti-Roe majority into switching sides. This may yet happen, although the opposite effect seems plausible, too: firming up the resolve of the justices on each side.
For the moment, though, it is safe to assume that Roe will be overturned—which means the regulation of abortion will be returned completely to the states, and an issue that has dominated our political landscape for five decades will be recast.
Like millions of other Americans, my views on abortion are complicated and have evolved somewhat over time. I have been a pro-choice Republican-leaning independent practically from the moment I came to the United States from the Soviet Union as a teenager in 1980. I didn’t know American politics enough to have a strong opinion in the 1980 election, but in 1984, while I was not yet a citizen and couldn’t vote, I wore a Reagan/Bush button on campus as a student at Rutgers University. I argued ferociously with people who thought you couldn’t be for Reagan and for women’s rights. In those days, when pro-choice Republicans were still a thriving breed and not quaint relics, I assumed that a reversal of Roe was extremely unlikely. I thought the Reagan appointees to the Supreme Court might uphold some restrictions on abortion but not strike down Roe outright. (In the case of Sandra Day O’Connor and Anthony Kennedy, I was correct.) I recall some pundits from that era saying—with the same kind of wary cynicism that conservatives often direct toward organizations focused on various progressive causes—that the last thing Republicans wanted was to see Roe actually overturned, because then they’d have to pass and defend actual anti-abortion legislation, not just grandstand.
And yet as much as I believed (and still do) that the right to abortion was essential to women’s personal freedom, I also started to see the other side of the issue. For one thing, I talked to people, mostly women, who were pro-life—a few in college but more when I started working in journalism and mingling in right-of-center circles—enough to see that they were very different from the caricature of misogynists who wanted to clap women back into the kitchen and the nursery or punish them for enjoying sex. While I thought it was impossible to build social policy on a nonexistent consensus that the developing fetus is fully equivalent to a human being, I came to believe that the fetus had enough moral standing to justify at least some restrictions abortion, including the requirement of a brief waiting period. I also concluded that abortion should not be covered by taxpayer-subsidized programs. If there were disproportionate burdens imposed on low-income women, private charity should meet those needs.
I often winced at pro-life rhetoric that treated an unwanted pregnancy as a mere inconvenience. Even if one were to treat adoption as unproblematic, I could see—based on the experience of friends who had children—that going through the pregnancy itself when you did not want it would feel like an intolerable imposition on one’s bodily autonomy. (Nope, it’s not comparable to an unwanted jab in the arm, no matter what you think of vaccine mandates.) But I winced just as much at “abortion on demand and without apology” and at early forerunners of “Shout your abortion” rhetoric. I thought the choice was sufficiently morally fraught that one should take all reasonable precautions to avoid it.
I also began to realize that the ramifications of abortion with regard to gender issues were enormously complex. I still think that female autonomy is a compelling basis for the right to abortion, at least early in the pregnancy.
I think of stories like that of a (now deceased) woman I used to know, a staunch conservative Republican who told me that legal abortion made it possible for her to have a successful career. A couple of years after Roe, she was about to resume her postsecondary education after raising two children as a stay-at-home mother when she suddenly found herself pregnant. She had no regrets about the abortion, she told me (beyond the regret implicit in occasionally wondering what the third child would have been like). I respected and still respect her choice. And yet I know and respect pro-life women who would say that a truly feminist solution would have been for this woman to have a support system allowing her to have another child without sacrificing her career aspirations—whether it’s better childcare options or cultural norms that encouraged her husband to take a turn scaling back his work for childrearing. (I also think our society has already come a long way toward these changes since the mid-1970s.)
Among the arguments about abortion that strike me as far too simplistic is the old one, still occasionally heard today, that it allows men to have sex with women and not worry about the consequences. For one thing, this argument seems like a conservative variant on (pseudo-)feminist male-bashing and female victimhood; women have agency, too, and can also want consequence-free sex. For another, it has become a lot easier, not harder, for unmarried women to collect child support over the past fifty years. And personally, I know of more cases in which men were deeply troubled when a female partner had an abortion without consulting or even telling them. If anything, I have some sympathy for the view that the Roe regime disadvantages men, since they cannot opt out of unwanted parenthood but have no say in pregnancy termination. There is ultimately no satisfactory way to resolve this conundrum or equalize the burdens, given the two sexes’ different reproductive roles; control over one’s body is generally regarded as far more sacrosanct than control over one’s finances. But this is another reason to think that abortion is not the optimal path to gender equality.
Over the years of following the polemics, I came to believe that whatever one thinks about abortion itself, Roe was badly argued and had no real constitutional foundation. Many other pro-choicers have gone on the record saying the same thing—and while “I don’t care as long as I like the results” has long struck me as a singularly vulnerable position, I admit that I still hoped, as the culture wars grew more and more acrimonious, that the dog of the right-to-life movement would keep chasing the car of Roe and never quite catch it.
Now that the dog really is closing in on the car, what can we expect for the future of abortion law and politics?
• In the past, pro-life voters were consistently more likely than pro-choice voters to regard abortion as a dealbreaker in voting for a candidate (30 percent vs. 19 percent in 2020, for example). I suspect that we will see that in many states we will see that change with the 2022 midterms and 2024 presidential race. Also, it strikes me as very likely that more young people, and young women in particular, will be strongly motivated to vote.
• Sweeping statements about state abortion bans should be treated with caution. Important moral and political distinctions can be made between full bans and, say, restrictions at 15 or 22 weeks.
• While it’s true that most Americans say they oppose overturning Roe, most also say that abortion should be mostly illegal after the first trimester—which means that they do not support the Roe and Planned Parenthood v. Casey framework that allows abortion until fetal viability (or arguably beyond, given how broadly the maternal health exception is defined). Most Americans would support the ban on abortions after the fifteenth week of pregnancy at issue in the Mississippi case currently before the Supreme Court. (For a deeper dive into the relevant public opinion data, see Will Saletan’s piece today.)
• Claims that the Supreme Court is “coming after democracy” (in the words of Boston Globe columnist Adrian Walker) are ludicrous. Roe removed the regulation of abortion from the democratic legislative process. You may think that was the right decision, but come on: there was nothing “democratic” about it. Ditto for claims that the Court is now engaging in judicial tyranny.
Really, if you think the likely Dobbs majority is an “unelected junta,” what was the Roe majority?
• This is not about women vs. men; women’s and men’s views of abortion are extremely similar. If only women were permitted to vote on abortion-related issues, the result would no different than if both sexes were voting.
• Women in states that ban abortion will be able to travel out of state—or purchase abortifacient drugs—with the help of an online support network that did not exist pre-Roe. By 2020, 54 percent of all abortions in the United States were medication abortions. While 19 states, including Texas and Mississippi ban online dispensing of abortion drugs (permanently authorized by the FDA last December), it’s unclear how such bans can be enforced short of massive policing of both internet usage and mail. If some overzealous red states try to crack down on out-of-state abortions or medication abortions by telemedicine by monitoring such activities and trying to punish the women or somehow go after their out-of-state accomplices, this will raise a host of new constitutional issues about surveillance, states’ rights, and more. The “snitching” provisions in the recent Texas law restricting abortion point to the potential for new kinds of disturbing prosecutorial spectacles. An intense backlash seems likely.
• Some conservatives are clearly cognizant of a mainstream backlash if the overturning of Roe is seen as restricting women’s liberty. Erick Erickson, for instance, got a lot of attention with his forecast that nothing much will change at all:
In a nation of 330 million people, there were 880,000 abortions last year. Most states have none or one abortion clinic. The day to day change will be status quo. To the extent abortion is now banned in some states, it was de facto banned anyway.
— Erick Erickson (@EWErickson) May 3, 2022
In his Substack post elaborating on his point, Erickson explains that bans will be enacted in states that already have very little abortion access and even seems to suggest that women in those states won’t really be stopped from having abortions:
The reality is nothing is really going to change. People who want an abortion may have to travel further to get one.
He ends with this prediction:
Most Americans will not be impacted at all by Dobbs. But hundreds of thousands of babies will be and that is a good thing.
Technically, Erickson’s analysis is correct: Although millions of Americans will be directly or indirectly affected by abortion restrictions, the majority won’t. And post-Dobbs abortion restrictions would likely reduce the abortion rate by “at least 14 percent,” according to an analysis conducted for the New York Times, which “could mean about 100,000 fewer legal abortions a year.”
Erickson appears to want it both ways, reassuring pro-life activists that they will have an important victory and the ambivalently pro-choice mainstream that its fears are groundless. But from the pro-choice point of view, Erickson’s scenario means that hundreds of thousands of women will carry pregnancy to term against their will (potentially affecting not only them but their partners, parents, and existing children). And millions of people’s sexual choices will likely be affected by knowing that abortion is not readily available in case of contraceptive failure. In short, this is hardly a “nothing is really going to change” scenario.
• “Interracial marriage will be next to go. . .”
The Republicans won’t stop with banning abortion. They want to ban interracial marriage. Do you want to save that? Well, then you should probably vote. https://t.co/MRytdsjUBP
— Rep. Eric Swalwell (@RepSwalwell) May 3, 2022
Oh, just stop. Yes, Alito’s draft mentions Loving v. Virginia (the landmark interracial marriage case) as well as Griswold v. Connecticut (which held that states could not ban personal use of contraception); but it does so only to stress how drastically different abortion is, because it involves what millions of Americans regard as a separate human life. Also, there is no constituency for ending interracial marriage, and almost no support for limiting contraceptives.
• Even a fairly radical ban on abortion is not synonymous with the enslavement of women. The World Economic Forum’s Global Gender Gap Report for 2017 ranked Ireland—which then had a near-total ban on abortion—ninth out of 149 countries, while the United States was ranked 51st. (One may question some aspects of the WEF’s rankings, but it’s hardly a right-wing organization.) Poland, which has a broad ban on abortion since the mid-1990s, has had three female prime ministers, and while it lags somewhat on the Equality Index, its overall proportion of women in workplace leadership positions in 2021 was slightly higher than in the United States (43 percent vs. 42 percent). This doesn’t mean that Poland’s abortion ban is harmless to women. It has led to known instances of women dying after being refused an abortion despite health complications—though it is only fair to note that, according to WEF statistics, maternal mortality in the United States today is nearly ten times higher than in Poland (19 per 100,000 births vs. 2 in 100,000). One can harshly criticize Poland’s abortion policies; many Polish people do. But Poland is still not Gilead from The Handmaid’s Tale. And the United States is not about to become Poland.
• Congressional Democrats, with the backing of President Joe Biden, say they hope to have a vote soon on a bill codifying abortion rights on the federal level. That vote will be just a matter of political symbolism, since it would require a 60-vote threshold to defeat the inevitable Republican filibuster, and Senators Joe Manchin and Kyrsten Sinema have already said they won’t change the Senate rules to suspend the filibuster. If such a law were to pass, however, it would likely energize the right-to-life movement. It would not be hard to imagine that a future Republican president and a Republican congressional majority would repeal such a law and then seek to pass a nationwide restriction on abortion.
Lastly: All predictions about life post-Roe must be taken with a shaker-full of salt. Do you really need to be reminded that we live in unpredictable times?