The Abortion War Will Soon Rip America in Two
Supreme Court Justice Anthony Kennedy upheld Roe v. Wade. Then-candidate Donald Trump pledged to only nominate judges to the high court who would overturn Roe v. Wade. These two facts have put the American judiciary on a collision course with the American electorate. Whatever the Supreme Court does next on abortion, our nation will become even more divided than it is today.
Why? Because the socially conservative component of Trump’s political base now expects Roe to be erased. As conservative New York Times columnist Ross Douthat explained last week, “the conservative legal movement’s political promise [has long been that] judges formed by its philosophy and principles would necessarily vote to overturn the post-1973 abortion regime. … Without that promise the current Republican coalition would not exist.”
Noting that abortion opponents previously felt betrayed when three Republican justices, including Kennedy, helped preserve Roe in the 1992 Planned Parenthood v. Casey case, Douthat argues that a repeat performance would spark “rebellions and disillusionment [that] will divide the right’s legal coalition, and pro-life voters will never trust the legal establishment’s promises again.”
Douthat’s column reads like a shot across the bow of Chief Justice John Roberts and Supreme Court nominee Brett Kavanaugh, the two conservatives most likely to deny anti-abortion activists the sweeping ruling they crave. He seems to want them to know that if they think following stare decisis, the principle of deference to past judicial precedent, would preserve the credibility of the court and the stability of our democracy, think again. By keeping the Roe precedent, even if they restrain it to some degree, they will cause massive political upheaval and shatter the Republican Party.
Douthat mentions in passing that the overturning of Roe would spark a “wider culture war,” but postpones any exploration of that for perhaps a column “in the months to come.” That may be a long wait. As an ardent opponent of abortion, Douthat may be loath to spell out what the end of Roe would mean for America. But the political ramifications of overturning may weigh on Roberts and Kavanaugh just as heavily as upholding.
Sixteen states have blanket abortion bans on the books that, while inoperative today, upon Roe’s demise would either automatically go into effect or be easily reinstated. Another six states, according to the Center for Reproductive Rights, are likely to adopt abortion bans if given the green light. But while abortion may be soon become illegal in at least 22 states, abortion rights appear secure in at least 21 others.
America would become roughly carved into three regions. The “Life States” that ban abortion would be a nearly contiguous region covering most of the South and some of the Midwest, flanked by the “Reproductive Freedom States” of the East and the West.
To today’s “federalists,” that map is a glorious picture: each state choosing its own way, liberated from the heavy, undemocratic hand of the Supreme Court, just as the Madisonians intended.
But such a bifurcation will not produce a happy equilibrium. There are too many Americans who support reproductive rights and won’t accept that where one lives should determine whether one can exercise those rights.
Public support for abortion rights, if not abortion on demand, has long been strong and stable. Since 1975, Gallup has asked whether respondents believe abortion should be legal “under any circumstances,” “under certain circumstances” or never. The numbers from 43 years ago are fairly similar to the numbers today, which are 50 percent for sometimes, 29 percent for always and 18 percent for never.
The vast majority of Americans have long wanted legal abortion to exist, in some capacity. Yet in a Roe-less America, millions wouldn’t get that choice. Such a misalignment of popular desire and policy reality is a recipe for explosive politics.
Moreover, we’re not talking about your average made-for-TV culture war skirmish. More than 900,000 women every year get an abortion. If abortion is no longer an option for hundreds of thousands of women, the trajectory of their lives would profoundly change. Economist Ana Nuevo Chiquero, in a 2010 paper, found that an unplanned birth “reduces female labor force participation by as much as 25%,” substantially impacts total family income for low-educated women and “damages the earning capabilities” of highly educated women. In an America without Roe, where a young woman with an unwanted pregnancy lives will determine her ability to realize her potential and her dreams.
(You might argue that adoption will still be available to those who don’t want to raise their own child. That’s true, but adoption appears to be a choice that women are far more reluctant to embrace than abortion. In 2014, there were 926,200 abortions but only 18,329 adoptions of domestic infants.)
This will not be an America where pro-choicers and pro-lifers live peacefully side by side. Already, there is a National Network of Abortion Funds, which seeks to help women lacking easy access to abortion with money and transportation. Such operations would likely scale up dramatically post-Roe, helping women in the “Life States” reach “Reproductive Freedom” in the East or West, almost like a 21st century Underground Railroad.
Such efforts could easily outrage those in the “Life States,” who would contend that “carpetbaggers” were circumventing their laws and facilitating infanticide. They could well agitate for federal legislation making it crime to help a woman cross state lines to get an abortion, much like the Fugitive Slave Act sought to crush the Underground Railroad.
I’m not predicting such legislation would pass Congress, let alone suggesting we’re headed for Civil War II. But I do believe that in a post-Roe America, Abraham Lincoln’s words would ring in our ears: “A house divided against itself, cannot stand.”
Where does this leave us? Those on the court who wish to avoid becoming an instrument of brutal wedge politics are in a no-win position. Trump’s campaign pledge to shape a court that would end Roe has set expectations on the right so high that whatever the justices do, political turmoil will follow. The question for the rest of us is: If the Supreme Court is unable to keep America from becoming a house divided against itself, what can we do to stand it up?
What we can do is recognize that common ground on reproductive issues will remain available, outside of the judicial realm. But it requires those who vehemently oppose abortion to recognize that abortion will never be eradicated in America, whether or not Roe survives. The best that a pro-life activist can hope for is a reduction in the number of abortions.
The good news for abortion opponents is the number of abortions has gone down, by a lot. In America, from 1980 to 2014, the rate of abortion plummeted by more than half, to a level lower than before Roe was decided. Abortion rates have also dropped globally, and according to a recent Guttmacher Institute report, increased use of contraception largely deserves the credit.
Social conservatives have continued to fight policies that promote contraception use, despite the fact that this battle has long been lost. Nearly all women have used contraception at least once. And one Guttmacher analysis of data from 2006 to 2008, from interviews of women who had sex without trying to get pregnant in the past three months, found 83 percent used contraception.
Advocates of “religious liberty” cheered in 2014 when the Supreme Court ruled that for-profit employers with religious objections did not have to follow the Affordable Care Act’s mandate to directly cover contraception in their employee health insurance. But two years after that ruling, a piddling 52 businesses and nonprofits took advantage of the contraception mandate exemption. Why expend the energy fighting a lost fight, when pro-lifers and pro-choicers could be working together to further cut the number of abortions?
I have no expectation that activists on both sides of the abortion debate will be holding summits anytime soon. The culture war chasm is going to widen further before there is any hope of narrowing it. But maybe, just maybe, sometime after the court makes its decision on abortion, and the realization sets in that abortion will never be fully removed from American soil, the merits of cooperation and existence of common ground will become evident to all parties.