Justice Antonin Scalia did not frame his opposition to Roe v. Wade in terms of opposition to abortion per se. His complaint was that the 1973 ruling created a nationwide constitutional right to abortion, thus channeling the issue into the federal courts and away from normal political processes.
By “foreclosing all democratic outlet for the deep passions this issue arouses,” wrote Scalia, who died in 2016, in his dissent from the court’s 1992 reaffirmation of Roe, “by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”
Scalia’s concern about judicial overreach was not unreasonable. No less a feminist than Justice Ruth Bader Ginsburg worried, before joining the court, that Roe short-circuited a developing political movement to legalize abortion, which might have succeeded without giving Roe to the pro-life right as a rallying cry.
Viewed in the context of today’s frenzied, hyperpartisan politics, though, Scalia’s opinion seems utopian: If a court stocked with President Trump’s picks overturns Roe, in whole or in part, Scalia’s imagined “fair” and “honest” political fight over abortion will take place on Twitter — including Trump’s feed — Instagram, Fox News, MSNBC and, inevitably, the streets. Maybe even in the farm-to-table restaurants.
Returning the issue to the “political forum” means that every candidate of both parties for every federal and state legislative and executive office, and probably many other positions, will soon have to declare as pro-choice or pro-life — not in the abstract, but knowing that their positions entail real consequences for which they will be accountable.
Not only that, politicians may have to weigh in on specifics such as spousal and parental notification, waiting periods, fetal pain laws, “heartbeat” laws and targeted regulations of abortion providers. Such rules and regulations have already been proposed and enacted in (mostly red) states over the past two decades.
Feminism, or at least equality for women, has gone mainstream since 1973; reproductive rights and bodily autonomy are central to it. Unlike those who might have felt compelled to hover in the shadows before 1973, women in the new post-Roe era will speak out in wrenching detail about their struggles against abortion restrictions.
Talk about “anguish.” Ironically, if it was up to the American people as a whole, they’d probably vote for something very much like, or at least compatible with, the Roe schema, as modified by the 1992 ruling in Planned Parenthood v. Casey, from which Scalia dissented: unrestricted first-trimester abortion, with tighter but not “undue” regulations later in pregnancy.
A total abortion ban has consistently garnered roughly 20 percent in the Gallup Poll since 1976. From one quarter to one third of Americans favor legal abortion under all circumstances (29 percent say that now). The middle 50 percent to 60 percent say it should be legal “under certain circumstances.”
According to a Knights of Columbus/Marist poll in January, 51 percent of Americans consider themselves “pro-choice,” but 56 percent say abortion is “morally wrong.”
Yet there won’t be a national referendum or, probably, national legislation. The states will act, and as they do, every nuance will be a potential battle cry for one side or the other, especially in purple states.
Think of it this way: If you tried to rewrite the Supreme Court’s current abortion jurisprudence as a statute, what would it say? I don’t have any idea either.
Post-Roe America could be an abortion-law patchwork with more restrictive laws, on balance, than it has today, and almost certainly with more furious, but still inconclusive, political argument.
The immediate impact of Justice Anthony M. Kennedy’s retirement is good for Republicans; it energizes their base and creates a dilemma for red-state Democratic senators. Over time, though, Republicans will have to move from milking a Roe-repeal promise for evangelical Christian votes to defending the consequences of keeping that promise.
Scalia used to liken Roe v. Wade to Dred Scott, the 1857 ruling that also created a right — slaveholders’ rights to their property, human beings — out of a general invocation of “liberty.” Rather than stabilize a country on the verge of civil war, the court’s intellectual and political overreach destabilized it.
What may have been most destabilizing about Dred Scott, though, was not the new right it so sloppily created, but the rights it abolished: those of African Americans, both enslaved and free, and of anti-slavery whites.
Taking rights away is risky political business. People get mad — which means the Republican Party better get ready.