The Day After Roe

If the Supreme Court overturns Roe v. Wade, it will set off tectonic shifts in the American political landscape not seen since the civil-rights movement—or perhaps even the Civil War
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With the recent appointment by President Bush of two Supreme Court justices, John G. Roberts Jr. and Samuel A. Alito Jr., interest groups on the left and the right are preparing for the end of Roe v. Wade. Leaders in both camps believe that the demise of Roe may occur sooner rather than later, and they have different scenarios for how the coup de grâce might be delivered. Imagine, for example, that Justice John Paul Stevens, having just turned eighty-six, decides to retire from the Supreme Court in July. President Bush, under pressure to appoint a reliable conservative to mobilize his base for the midterm elections, nominates Judge Edith Jones of Texas, a fire-breathing social conservative who has written that “one may fervently hope” courts will reconsider Roe v. Wade. Outraged Senate Democrats then mount a filibuster, and the Republicans respond with the so-called nuclear option, eliminating the filibuster for judicial nominations by a simple majority vote. Jones is then confirmed along party lines, fifty-five to forty-five. She joins the Court in October, just in time to hear a constitutional challenge to the federal ban on “partial-birth” abortions that the justices have already agreed to review. In June of next year, the Supreme Court hands down its decision. By a 5–4 vote, the justices not only uphold the right of Congress and the states to ban partial-birth abortions, which often occur late in pregnancy, but also overturn Roe v. Wade, thus allowing the states to ban or restrict abortions from the very beginning of pregnancy.

No one except Justice Stevens, of course, knows whether he is inclined to retire, and even if he did, no one knows whether the five votes would emerge to overturn Roe cleanly. (For what it’s worth, I wouldn’t bet on Chief Justice Roberts’s siding unequivocally with the anti-Roe forces.) But serious people on both sides of the abortion divide are girding themselves for the fights in Congress and the state legislatures that they believe will erupt once Roe is finally uprooted. And states like South Dakota are so convinced that Roe’s demise is imminent that they are racing to pass sweeping bans on abortion designed to encourage the Supreme Court to administer the last rites. So let’s assume, for the sake of argument, that the activists are correct and the long-anticipated moment has finally come to pass: Roe v. Wade is no longer on the books. What happens next?

The results might not be what you expect. The day after Roe fell, of course, abortion would be neither legal nor illegal throughout the United States. Instead, the states and Congress would be free to ban, protect, or regulate abortion as they saw fit. But in many of the fifty states, and ultimately in Congress, the overturning of Roe would probably ignite one of the most explosive political battles since the civil-rights movement, if not the Civil War. A careful look at how the pieces of the Rubik’s Cube might begin to turn the day after Roe suggests that access to abortion wouldn’t necessarily become less widely available than it is now; that the Democrats could gain politically, perhaps even seizing the White House and both chambers of Congress; and that, when the dust settles, in five or ten or thirty years, early-term abortions would be protected and late-term ones restricted.

Throughout American history, the Supreme Court, often derided as the least democratic branch of the federal government, has, paradoxically, best maintained its legitimacy when it has functioned as the most democratic branch—that is, when it has deferred to the constitutional views of Congress, the president, and the country as a whole. For all the invective initially generated by Brown v. Board of Education, which outlawed school segregation, the decision was supported by more than half of the country when it was handed down in 1954, a time when southern minorities were blocking Congress from enacting the civil-rights legislation that the public supported. Many of the most famous decisions by the Warren, Burger, and Rehnquist Courts similarly reflected the popular will: a survey of eighty-eight civil-rights and civil-liberties cases between 1953 and 1994 found that, in most instances, the Supreme Court was generally in sync with public opinion. When public opinion opposed a particular rights claim, so, by and large, did the Supreme Court.

Roe v. Wade was an entirely different matter. The Court’s decision, in 1973, to strike down abortion laws in forty-six states and the District of Columbia was high-handed, and represents one of the few times in history that the Court leaped ahead of a national consensus. In every Gallup Poll since soon after Roe was decided, small minorities of Americans—in the 20 percent range on each side—have said that abortion should be always illegal or always legal, while a large majority has said it should be legal under some circumstances and especially at the beginning of pregnancy. Later, the Court continued to ignore popular opinion when it struck down, in the name of Roe, many practices enthusiastically supported by the public, including spousal-notification laws, parental-consent laws, and informed-consent requirements. Critics of Roe v. Wade often compare it to the Dred Scott decision on slavery before the Civil War. In both cases, the Supreme Court overturned political compromises that national majorities supported, provoking dramatic political backlashes.

The Court seemed to align itself better with public opinion when it reaffirmed Roe in the 1992 Planned Parenthood v. Casey decision: abortions that take place before fetal viability (about twenty-four weeks) had to be protected, the Court declared, but those after viability could be restricted. And yet the Court departed from this moderate and widely accepted compromise eight years later, in Stenbergv. Carhart, when it struck down laws in thirty-one states banning partial-birth abortion—laws that are currently supported, according to a recent Gallup Poll, by 70 percent of the American people. If the Court decides to reverse Stenberg next year and to uphold the federal law banning partial-birth abortions, it might still preserve the core protections of Roe v. Wade for choice early in pregnancy. If so, it would express the sentiments of the majority of Americans on abortion far more faithfully than the current White House and Congress are likely to do.

If, on the other hand, the Court does seize the opportunity to overturn Roe, it would at least allow national majorities to eventually make their constitutional views about abortion clear. The Court has served itself well in the past by upholding state and federal laws in the face of uncertainty about the constitutional views of the American people, and by deferring to those of the other branches of government, rather than blindly following the polls. Still, if a national referendum were held the day after Roe fell, there’s little doubt that early-term abortions would be protected and that later-term abortions would be restricted. But the U.S. Constitution doesn’t provide for government by referendum. Because of the intricacies of American federalism, and the polarization of American politics exacerbated by Roe itself, the moderate national consensus about abortion might not be reflected in law for years to come, and the political landscape could be transformed beyond recognition. What follows is a guide to the battles that might break out in Congress, the states, the White House, and the courts after Roe falls.

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Jeffrey Rosen is a professor of law at George Washington University.

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