Can Jack Balkin See the Future?
[Reihan] Jack Balkin and I don't see eye to eye on Roe v. Wade, but he happens to have a very sophisticated interpretation of the politics surrounding Roe that I fear is more accurate than not. This comes to mind in light of today's Supreme Court ruling concerning the Partial Birth Abortion Ban Act.
For Balkin, Roe plays a critically important role in keeping the Republican coalition together. And so it will remain in place, hollowed out slowly over time.
A far more prudent strategy, and the one the President and his advisors will likely adopt, would be to appoint Justices who will preserve Roe but chip away at it slowly, for example, by devising new procedural rules that make it difficult to challenge abortion regulations in federal court, by upholding restrictions on particular medical procedures like partial birth abortion, and by further limiting abortions for minors and poor women. Moderates and independents may not like these changes, but such rulings will be much less likely to induce wholesale defections from the Republican coalition than wiping Roe v. Wade off the books. The latter is a simple, easy to understand result that people can get angry about and rally around. Procedural limitations on abortion, by contrast, are hard to explain to voters and therefore risk less political danger for the Republicans.
Chipping away at Roe slowly not only allows the party to keep moderates and independents from bolting, it also preserves a hated symbol for the party's base of religious conservatives to struggle against. As long as Roe remains law, religious conservatives can point to it as a example of what is wrong with America and with a liberal activist judiciary (which is, of course, increasingly staffed by conservative Republican Presidents!). Thus, the reverse litmus test not only holds the party's winning coalition together, it's also good practical politics.
So is Balkin right? A lot of frustrated pro-lifers I know think this is spot on.
This scenario is particularly interesting for this reason: if Balkin is right and Roe evolves in such a way that it "provides the practical right to abortion only to relatively educated and affluent women with resources and connections," we'll increasingly see the abortion battle fought over women on the margins. I'm reminded of Alexander Payne's dark culture-war farce Citizen Ruth, in which pro-lifers and pro-choicers fight ferociously over the fate of a quite sympathetic glue-sniffing petty criminal.
I used to believe that technological solutions would render the abortion debate obsolete, but Ross and Megan, over dinner, convinced me otherwise. Insofar as there is a place for paternalism, towards the most vulnerable and least capable segments of society, it is going to a bitterly contested place.