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
IV. The Courts

Once Roe is gone, one argument goes, each state would be free to reflect the wishes of local majorities, and the country would quickly reach a democratic equilibrium. But that assumption, as we’ve seen, may be too optimistic. Since the abortion battle will be fought out in the states and in Congress, rather than settled by a national referendum, it’s possible that pro-life and pro-choice extremists could thwart the moderate compromises that national majorities have long supported.

The courts might further complicate the political dynamic in unexpected ways. The day after Roe, activists on both sides would rush to court to challenge state abortion laws, claiming that they violated the state and federal constitutions. It’s not hard to imagine that a rogue judge (in the spirit of Roy Moore, who was unseated as chief justice of Alabama after he defied a federal court order and refused to remove a monument to the Ten Commandments he had installed in the rotunda of the state judicial building) might overturn a state law protecting abortion. A battleground state like Illinois might provide the stage for a memorable act of pro-life judicial activism. The Illinois state legislature declared in 1975 that an “unborn child is a human being from the time of conception,” and it’s easy to envision a conservative Illinois judge invoking this pronouncement as he overthrows an Illinois law protecting early-term abortions.

If a Democratic Congress managed to pass a federal law guaranteeing early-term abortions, and a President Hillary Clinton signed it, it’s possible that conservative activists on the Supreme Court might further inflame national opinion by striking the law down. Those justices who are most intensely committed to federalism believe that Congress, under the Constitution, has limited authority to regulate interstate commerce; they might decide that because abortion is a medical activity rather than a commercial one, Congress has no authority to prevent states from banning it. This would be a brazen act of judicial activism—no less anti-democratic than Roe itself. But the only way to reverse a Supreme Court decision like this would be to ratify a federal constitutional amendment protecting abortion. If the House and Senate were Democratic, it would be very difficult, but perhaps not impossible, to get two-thirds of each chamber to propose a pro-choice constitutional amendment. But persuading three-fourths of the state legislatures to ratify the amendment could take years. As time passed, the frustration of a highly mobilized, pro-choice majority would dramatically increase as it found itself repeatedly thwarted from enacting its wishes into law. “I can imagine a fifty-front war going on for the next thirty years,” says Nancy Northup of the Center for Reproductive Rights. “Be careful what you wish for.”

Nevertheless, at some point after Roe fell, the country would reach some kind of political equipoise on abortion. It’s difficult, in America, to deny the wishes of majorities for too long, and whether it takes years or decades, the state legislatures and Congress will eventually come to reflect the popular will. When the dust settles, most of the state laws may look a lot like the compromise that the Supreme Court finally settled on in the 1992 Casey decision: protecting early-term abortions and restricting late-term ones. If Roe v. Wade hadn’t short-circuited the national political debate about abortion, the state legislatures might have arrived at this compromise on their own more than a decade earlier. But in light of the polarizing backlash that Roe provoked, the Supreme Court today might well move more quickly than our elected representatives to mirror the constitutional views of the moderate majority of Americans. If the Court remains sensitive to the people’s constitutional views, as it has been for most of its history, it may be more than a little hesitant to overturn the core of Roe in the first place.

In the twentieth century, judicial encounters with laws concerning mandatory sterilization and contraception have confirmed the limited ability of courts to challenge deeply felt currents of public opinion. During the first half of the twentieth century, compulsory sterilization of the “mentally defective” was extremely popular, encouraged by the Progressive political and religious leaders of the American eugenics movement. In response to this public enthusiasm, legislatures in sixteen states passed laws, between 1907 and 1913, authorizing the sterilization of “idiots” and “imbeciles.” When lower courts struck down seven of these laws, their decisions had little practical impact, and states passed even more sterilization laws. The Supreme Court upheld these laws in a notorious 1927 opinion by the enthusiastic eugenicist Justice Oliver Wendell Holmes Jr. Despite a 1942 Supreme Court opinion questioning mandatory sterilization, sterilization laws remained on the books through the 1960s, and as recently as 1985 the sterilization of the mentally retarded was allowed in at least nineteen states. In the end, American support for sterilization cooled not because of the courts but because of public antipathy to Hitler’s eugenics policies and, later, accusations during the civil-rights movement that blacks were disproportionately targets of mandatory sterilization. The judicial response to laws restricting contraception followed a similar pattern. In 1965, the Supreme Court, in Griswold v. Connecticut, forced the last holdout state to comply with an overwhelming national consensus when it struck down Connecticut’s law banning the use of contraceptives by married couples, the only law of its kind in the nation still on the books. Because popular support for banning contraception had eroded, the Griswold decision was embraced by Congress, the White House, and the country as a whole.

The great question of American politics is whether this historical pattern of judicial sensitivity to the constitutional views of majorities will continue to hold in the future. In the 1980s and 1990s, partly in response to Roe v. Wade, interest groups arose on the right and left that urged judges to ignore the views of national majorities as a sign of their constitutional virtue. For more than two decades, Republican presidents have looked for Supreme Court nominees who appeared to be pro-life—and then have prayed that they wouldn’t actually overturn Roe. But at some point, it’s possible that the GOP’s luck might run out: Republicans might get too many Court appointment opportunities to prolong this exquisite balancing act, and Roe could indeed fall. At that point, it’s not clear who would represent the views of the moderate majority that the Supreme Court has tried—and often failed—to capture in its abortion cases. But whatever party or movement managed to seize the vital center in a post-Roe world would be likely to dominate American politics for a generation to come.

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

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