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

A year or so after Roe, state legislators in a large group of  swing states would probably remain undecided about precisely which abortion regulations to adopt. This can only mean they would be consumed by the abortion debate. The extraordinary spectacle of fifty state legislatures fighting over the question of when life begins would rivet the nation and overwhelm the state legislators themselves, many of whom are part-time representatives with little aptitude or inclination for debating the finer points of ontology. “My single biggest concern is that abortion politics will simply dominate state legislatures in many states, even those in which there’s no majority for a criminalization strategy, in ways that will be very unpredictable and will distract policy makers from almost everything else,” says Ed Kilgore of the moderate Democratic Leadership Council. “In swing states, Democrats would be under pressure to sponsor state legislation re-establishing the right to choose, and they’d have to make some hard choices about how extensive to make that. I’ve talked to a few state legislators, and everyone has expressed a sense of horror.”

Indeed, many Democrats would be forced to decide whether to ignore the demands of their pro-choice base and to support the kind of restrictions that both local and national majorities overwhelmingly endorse—such as twenty-four-hour waiting periods and parental- and even spousal- notification provisions. Bills such as the one recently debated in Mississippi requiring that women seeking abortions be offered an opportunity to view a sonogram are also likely to be popular: the pro-life movement has discovered that viewing an ultrasound of the fetus early in pregnancy may change the way some parents think about abortion. (My wife and I are expecting, and having viewed a sonogram of our twin babies at only twelve weeks I can attest to the emotional power of the experience.)

But the moment that voters in swing states began to think that their own right to choose early-term abortions was threatened, state politics could tip decisively in the pro-choice direction. In Virginia, for example, after the U.S. Supreme Court, in 1989, handed down Webster, a decision that suggested Roe v. Wade was within one vote of falling, voters in the next election chose as governor a Democrat, Doug Wilder, because he was pro-choice. In the aftermath of Roe, there might be even more dramatic backlashes in battleground states like Pennsylvania and Ohio, especially if their state legislatures passed more conservative restrictions than the political center supports. In the current U.S. Senate race in Pennsylvania, a pro-life Democrat and a pro-life Republican, Bob Casey and Rick Santorum, are running against each other; in a post-Roe world, however, pro-choice voters who tend to hold their noses and vote for social conservatives might look for pro-choice alternatives. But because of the pressures on both parties to pander to extremists in their bases, exacerbated by the polarizing effects of the Internet, one can envision a scenario in which neither Democrats nor Republicans would prove deft enough, in swing states, to capture the moderate center. In that case, third parties might emerge to step into the centrist void.

As the state electoral maps were thrown into chaos, Congress would come under increasing pressure to intervene. In the late 1960s, as Bill Stuntz of Harvard Law School notes, national opinion shifted after sensationalistic articles appeared in Newsweek and The Saturday Evening Post exaggerating, by at least a factor of ten, the number of deaths from botched illegal abortions. A year or two after Roe, a similarly galvanizing television image might mobilize women in swing states to take to the streets on behalf of the right to choose. “If a young woman who is raped gets pregnant and goes to a downscale abortion provider and dies from the infection, that becomes a huge story,” says Stuntz.

It’s hard to know precisely how soon after the fall of Roe a story about a botched abortion might capture the national imagination. But the moment pro-choice and swing voters perceived that their own right to choose was threatened, there would be increasingly urgent demands for a federal bill protecting the early-term choice that two-thirds of the country supports. If congressional Republicans failed to respond, or insisted on trying to ban early-term abortions instead, their intransigence could set in motion a national backlash that would make the response to Roe v. Wade itself look tame.

Presented by

Jeffrey Rosen, a law professor at George Washington University and legal-affairs editor of The New Republic, has written previously for this magazine about John Ashcroft and the legacy of the late Chief Justice William Rehnquist. His latest book, The Most Democratic Branch: How the Courts Serve America, will be published this month by Oxford University Press.

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