The Supreme Court may overturn the Roe v. Wade and Planned Parenthood v. Casey decisions, which underpin the constitutional right to an abortion under certain circumstances, in Dobbs v. Jackson Women’s Health Organization. Some commentators have suggested that doing so will remove the abortion issue from national politics by “sending it back to the states.” They speculate on how the Democratic and Republican parties’ fortunes will change once abortion is no longer part of the national discussion. Yet while we don’t know how the court will rule in Dobbs, there is no reason to believe that overturning Roe and Casey would reduce the salience of abortion in national politics. In fact, history suggests that the opposite is true.
The great moral debates of the past were not settled simply by “returning issues to the states.” Federalism is seldom a satisfying answer for advocates of moral causes, both because such issues invariably spill over state lines and because compromise is morally unsatisfying. The history of the abortion rights fight and earlier moral controversies suggests this issue will not fade away any time soon.
Federalism is not, putting it mildly, how the struggle over slavery ended, for example. Abolitionists were hostile to slavery in the South. Although Southern Whites claimed to support “states’ rights,” they insisted upon a Fugitive Slave Act, requiring free states to enforce slavery, and refused to accept the idea of “popular sovereignty” — letting Western territories decide for themselves whether to allow enslaving people. They worried about being outnumbered in Congress and about enslaved people fleeing to free states. They thought they had the right to import slavery to the territories, too. Leaving it to the states, therefore, was a nonstarter. Instead, it took the bloodiest war in American history to settle the issue.
The next great moral controversy in American history, Prohibition, also offers little encouragement to those who think returning abortion to the states will quiet the controversy. On the surface, it might seem like a better example of diffusing an issue through federalism. After all, there were “dry states” until the 1960s and there are still “dry counties.”
Yet, digging deeper into the history of Prohibition shatters this theory. Temperance advocates actually won state laws banning alcohol sales starting in the 1840s. But they were not satisfied with these victories and instead insisted on a national ban on the sale of alcohol — one that took close to 80 years of struggle to achieve. Driven by religion, identity and women’s activism (forces also animating abortion politics), theirs was a moral crusade, and anything short of total success threatened the moral fiber of America.
After their initial national triumph in 1919, however, they lost public support. A mere 14 years after passage of the 18th Amendment, Congress passed the 21st Amendment repealing Prohibition — majorities of both parties backed it — and three-quarters of the states ratified it in less than a year.
This theoretically returned the issue to the states, but in reality, the outcome was obvious. Over 70 percent of voters had backed repeal in votes for delegates to state conventions in 1933. While “Drys” continued to defend shrinking state and county enclaves, the issue was no longer debated in Washington because the “Wets” had decisively won at the national level.
The history of abortion before Roe indicates that it would follow the path of these earlier moral issues. In fact, despite the myth that Roe brought abortion into national politics — which scholars have rebutted — the issue had already reached Washington before the Supreme Court’s 1973 ruling.
Starting in 1967, several states liberalized their abortion laws. But what started in the states did not stay in the states. In 1970, Sen. Bob Packwood (R-Ore.) introduced a bill legalizing abortion in Congress. In 1971 President Richard M. Nixon barred abortions in military hospitals in states with abortion bans, although the states had no jurisdiction there, and denounced “abortion on demand.” In 1972, Nixon made front-page news when he supported efforts to repeal New York’s new liberal abortion law.
Nixon wasn’t responding to a court ruling — he actually said nothing about Roe in January 1973. Rather, he recognized an opportunity and was executing a political strategy aimed at making inroads among White Catholic Democrats. In 1972, Democratic presidential nominee George McGovern fended off a serious effort — led by the party’s new, growing feminist faction — to insert pro-abortion rights language into the party’s platform. Like Nixon, he understood that the issue threatened to fracture his party, which had won the Catholic vote since the 19th century. McGovern was nevertheless tagged as the candidate of “acid, amnesty and abortion.”
All of this happened before Roe and before social conservatives and feminists had become so deeply entrenched in the Republican and Democratic party coalitions, as occurred at the state and national levels by the 1980s.
This history indicates that it is implausible that a Supreme Court ruling “returning abortion to the states” will remove the issue from national politics.
After all, a ruling overturning Roe and Casey would not give either side what it wants. It would be a disaster for the abortion rights side, rapidly curtailing reproductive rights in much of the country. Having lost the Supreme Court’s protection, and powerless in many states with abortion bans, abortion rights forces would push Congress to pass a national statute codifying the right to an abortion, which they see as integral to providing equal rights for women. Thirty years ago, in fact, when many feared Roe would be overturned, proponents of abortion rights proposed a national Freedom of Choice Act. Today a similar measure, the Women’s Health Protection Act, already has hundreds of sponsors in the House and Senate, and the House passed it 218 to 211 in September. Senate Majority Leader Charles E. Schumer (D-N.Y.) has promised a Senate vote on the proposal, though it will not pass now.
For their part, antiabortion forces, who see abortion as murder, unacceptable anywhere, would inevitably seek national restrictions and ultimately a national ban, which the Republican platform has endorsed since 1980. As with opponents of slavery and alcohol consumption, leaving abortion legal anywhere would be morally unimaginable. Some antiabortion activists may focus initially on making gains at the state level, but after the low-hanging fruit has been picked, they would see many states in which they cannot hope to prevail and the allure of action at the national level would grow.
Even if neither side had the votes to enact a national abortion law in the short term, that does not mean one would not be debated. Campaigns to enact legislation often take decades. Congressional leaders regularly stage “show votes,” bringing bills to the floor with no chance of passage in the hope of gaining media coverage, pleasing activists and putting their political opponents on the spot. One side or the other will see a political advantage in keeping the issue on the political agenda at any given time.
The politics of the Supreme Court would keep the issue on the national agenda, too. The antiabortion activists never gave up hope over five decades, even though the Supreme Court voted 7 to 2 against them in 1973. Over nearly half a century, they succeeded in shifting the court’s balance. In the face of a 6-to-3 or 5-to-4 ruling, the abortion rights side would be similarly dogged. Talk of expanding the Supreme Court would only grow. The battle over the court would necessitate a continued focus on presidential and Senate races for both sides.
While the notion that a Supreme Court ruling gutting Roe and Casey would banish abortion politics from Washington, D.C., to state legislatures might be comforting to some pundits, it finds little support in history. Problems spill over state borders, and on issues driven by morality, religion and identity, anything short of a total win tends to be unacceptable to either side. Abortion was not transformed into a national political issue by the justices in 1973. Instead, activists and politicians put it there — and they’d keep it there, no matter how the justices rule in 2022.