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
III. The White House

If Roe falls in June 2007, abortion will almost certainly become the central issue in the 2008 presidential election. And Republicans are already worrying about the political fallout. “We’d be blown away in the suburbs, and you wouldn’t see another Republican president for twenty years,” a pro-choice Republican congressman recently told Roll Call. Karl Rove has long dodged questions about whether he thinks Roe should be overturned, and Ken Mehlman, the head of the Republican National Committee, has refused to comment on the South Dakota law, making it clear that he’d rather talk about anything else. The fact that Electoral College battleground states, such as Ohio and Pennsylvania, are likely to be facing the fiercest state fights over abortion can’t be good news for the GOP.

Imagine what the effect of Roe’s demise might be on John McCain, the Republican senator who, although undeclared as a presidential candidate, seems, at the moment, to have the best chance of winning a general election. A recent bipartisan national poll found that McCain had a favorable rating from 65 percent of the respondents, as opposed to 46 percent for the Democratic front-runner, Hillary Clinton. Those who positively rated McCain crossed party lines and political ideologies, including 64 percent of conservatives, 67 percent of independents, and 67 percent of liberals. These impressive numbers could evaporate in an instant if Roe is overturned, because McCain is strongly pro-life, and he would have to tack even further to the right to win the Republican primaries in a post-Roe world. The GOP base is already wary of his stand on taxes and campaign finance. “He would stick with the pro-life part of the party, and it would hurt his chances of being elected,” says a former McCain aide. When asked by Newsweek whether he supported the South Dakota ban, McCain was palpably uncomfortable, saying he would support it if it were consistent with his long-standing position that abortion should be banned except in cases of rape and incest and to protect the mother’s life. But this position could cause swing voters, most of whom favor an exception for the mother’s health, to desert McCain in droves: suddenly he would look like a radical conservative rather than a moderate maverick. Without a reliable constituency on the right or the left, McCain’s candidacy might collapse.

Hillary Clinton, on the other hand, would benefit greatly from the demise of Roe. Her liberal credentials on social issues would reassure the Democratic base, which would demand pro-choice orthodoxy in the primaries, but looking toward the general election, Clinton has already begun to position herself as an abortion moderate. In a speech on Roe’s anniversary, last year, she emphasized that abortion is a “sad, even tragic choice to many, many women,” adding that government should “do more to educate and inform and provide assistance so that the choice guaranteed under our Constitution either does not ever have to be exercised or only in very rare circumstances.” (Her husband’s mantra on abortion—“safe, legal, and rare”—was more concise but similarly finessed.) Among Clinton’s potential Democratic primary opponents, perhaps Governor Mark Warner of Virginia would be even better equipped to capture the median voter’s position on abortion in a general election. But except for Rudolph Giuliani, no Republican candidate could plausibly impersonate an abortion centrist, and if Roe fell, Giuliani might have an even harder time than McCain satisfying the base in the Republican primaries.

So there’s a good chance, assuming Roe falls, that there will be a Democrat in the White House by 2009. If Congress, at that point, passed a Freedom of Choice Bill protecting early-term abortions, the president would sign it. And if Republicans attempted a filibuster, they might marginalize their party for decades to come. It’s possible for the president and Congress to resist the wishes of national majorities for a while, but not forever. For nearly forty years, a small group of southern Democratic senators prevented Congress from enacting civil-rights legislation, including anti-lynching laws. Similarly, although there have long been national majorities in favor of gun control, Congress has refused to pass stricter gun-control legislation because the National Rifle Association is better organized and more intensely mobilized than the diffuse, less committed anti-gun majority.

If Roe is overturned, by contrast, the national majority for early-term choice would resolve to vanquish any minority that tried to block its will. Republicans who tried to obstruct a pro-choice federal law supported by Congress, the president, and the public might consign themselves to electoral oblivion, much as the Democrats did before the Civil War. In 1856, after winning the presidency and both chambers of Congress, the pro-slavery majority wing of the Democratic Party destroyed the more moderate minority wing and, ultimately, the party itself, by demanding increasingly sweeping protections for slavery. The moderates, led by Illinois Senator Stephen Douglas, insisted that each state or territory should decide for itself whether to protect slavery or ban it, while the extremists held that the rights of slaveholders had to be preserved, regardless of what local and national majorities wanted. In the Dred Scott case, in 1857, the Supreme Court imposed the views of pro-slavery Southern extremists on the entire country and helped to precipitate a historic political realignment. As a result, Northern Democrats switched parties and became Republicans, and the Democrats failed to win the presidency and Congress again for nearly forty years.

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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