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
II. Congress

If Roe falls next June, the House and Senate majority leaders will presumably be called to the White House the next day to discuss ways of preventing pro-life representatives and senators from introducing a draconian federal bill to ban abortions in nearly all circumstances. Given the tepid national support for a near or total ban, even among Republicans (only a narrow majority of whom believe that abortion should be illegal in most or all cases), the party leadership understands that an extreme federal ban has the potential to split the Republican coalition at the seams. “Many moderates within the Republican Party, and even some conservatives, bought into the pro-life position when there was no threat Roe would actually be overturned,” says Marshall Wittmann of the Democratic Leadership Council. “I think there are a lot of Republican moderate women and men—especially exurban and suburban women—who would be very queasy about this issue. GOP leaders would fear that they couldn’t hold the coalition together if abortion rights were truly threatened.”

Whether the majority leaders would be inclined or able to enforce party discipline and prevent a sweeping pro-life abortion bill from reaching the Senate and House floors in 2007 is anyone’s guess. As the Terri Schiavo debacle shows, both of the current leaders, Bill Frist and Dennis Hastert, are more concerned with mollifying their base than courting the center, and both have been willing to support socially conservative legislation that a majority of the public opposes. (Last year, in a CBS News poll, 82 percent of Americans said they disapproved of the decision by Congress and the president to intervene in the Schiavo case.) In the Senate, ardent pro-life Republicans, like Sam Brownback of Kansas, might well introduce a sweeping abortion ban, but pro-choice Republicans, like Arlen Specter, the chair of the Senate Judiciary Committee, would presumably prevent the bill from reaching the Senate floor.

If a draconian abortion ban did, however, make it out of the Judiciary Committee, there are a handful of other moderately pro-choice Republicans, such as Olympia Snowe and Lincoln Chafee, who would presumably break ranks to vote against it. Other pragmatic Republicans might try to coalesce around a less extreme abortion restriction that a majority of the Senate and the country could support, such as the Child Custody Protection Act, which has already passed the House and would criminalize the act of helping minors cross state lines to obtain an abortion without first complying with their home states’ mandatory notification law. Other moderately pro-life measures might include expanding the federal law that allows health-care companies to opt out, in certain circumstances, of Medicaid contracts that cover abortion services. Pro-life activists, of course, would be furious at a compromise like the Child Custody Protection Act, but the pragmatists might try to appease them by waving the banner of federalism and claiming that the abortion issue should ultimately be settled in the states. “It’s hard to imagine Congress moving very quickly or reaching a broad consensus on abortion policy,” says Whit Ayres, the Republican consultant. “I think the ultimate decision will be pushed away from the extremes.”

If efforts at compromise failed, however, and a sweeping abortion ban somehow made it to the Senate floor, the Democrats might mount a filibuster (assuming it was still available for ordinary legislation). But whether or not the federal abortion ban progresses very far, the mere threat of its passage might be enough to push the Democrats over the edge in the 2008 elections, helping them to recapture at least the Senate and perhaps even the House. Pro-life voters are currently better mobilized than their pro-choice opponents; surveys have shown that pro-life voters rank a candidate’s position on abortion among their top three concerns, as opposed to pro-choice voters, who rank it substantially lower. But the day after Roe, those priorities would undoubtedly change. Suburban Republican women, a number of whom are fiscally conservative and socially liberal, might switch parties in many states, giving Democrats the margin of victory they need to win the Senate in a country virtually at parity. Virginia, for example, currently has two Republican senators, John Warner and George Allen, but it’s not clear how either would do in a race where swing voters were energized by the issue of choice. (Even the ardently pro-life Allen told Newsweek that he would have vetoed a South Dakota–style law if he were still governor of Virginia, and declared on Meet the Press that the federal government shouldn’t be in the business of passing abortion laws, but should instead leave the issue to the states.) Throughout the South, moderate Democrats in the mode of John Edwards might beat conservative pro-life Republicans in enough states to shift the Senate.

Even in the House, where there are fewer competitive seats due to gerrymandering, the rise of abortion moderates could give the Democrats a fighting chance to gain the seventeen seats necessary to win a majority. “Gerrymandering depends on existing voting patterns holding, and this would change existing voting patterns,” says Bill Stuntz of Harvard Law School. “You have a lot of sixty-forty districts, but if national public opinion on abortion shifted, at some point Democrats would win a lot of seats that Republicans have been winning by more than ten points, just as Republicans did when they took the House in 1994.”

It’s entirely possible, therefore, that if Roe were overturned, both the House and the Senate would be Democratic after the 2008 elections. What would happen next? The moment the new Congress was sworn in after a national election dominated by abortion, Democrats in both chambers would introduce a federal bill to codify the protections of Roe v. Wade. It might look very much like the Freedom of Choice Act, which has languished in Congress for the past decade. That act would protect a woman’s right to choose before fetal viability and allow states to ban abortion after fetal viability, unless the life or health of the mother is threatened. The Freedom of Choice Act was introduced in the Democratic Congress that followed Bill Clinton’s election in 1992 and was defeated in part because pro-choice extremists insisted that it didn’t go far enough in protecting late-term abortions. The more moderate Democrats elected after the overturning of Roe, one hopes, would not make the same mistake. If a Democratic Congress proposed the Freedom of Choice Act, moderate pro-choice Republicans in swing states, like Specter in Pennsylvania, would face tremendous pressure to support it. But even with some Republican support, it’s not certain that a Democratic Congress could muster the sixty votes necessary in the Senate to defeat a Republican filibuster (assuming, once again, that it still exists). NARAL Pro-Choice America estimates that in the current Congress, there are about fifty potentially pro-choice senators, thirty-three of them reliable and seventeen swing votes. Unless the election of 2008 were a Democratic sweep, a Republican minority might still be able to block a federal law protecting early-term abortion, even if a majority of the Senate and the country supported it. Or a Republican president could threaten to veto the Freedom of Choice Act. But if Roe is overturned, there may not be a Republican president.

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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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