ILLUSTRATION BY JOHN DEERING
Amy Coney Barrett’s confirmation to the Supreme Court is a done deal. So, it seems, is the demise of Roe v. Wade.
Roe is not exactly popular: Many believe that it poisoned our politics. By mandating a single national solution and invalidating the vast majority of state laws then on the books, the decision purportedly “destroyed the compromises of the past [and] rendered compromise impossible for the future,” in the words of Barrett’s mentor, Supreme Court Justice Antonin Scalia.
Scalia thought that Roe was such a cancer that it “inflamed our national politics in general.”
It has become an article of faith among conservatives that Roe sparked the intense political polarization we face today, but many liberals agree: Justice Ruth Bader
Ginsburg suggested that the
anti-abortion movement might have sputtered out if the Supreme Court didn’t intervene, and that Roeinstead “prolonged divisiveness.”
Recently, legal expert Joan Williams speculated that the end of Roe might make it easier for Democrats to achieve the rest of their agenda. Perhaps, in a post-Roe world, the culture wars may rage a little less intensely, may have a little less emotional heat.
Roe certainly mattered. It created a single target for social conservatives, furious at changes to the family and the broader culture. It helped nationalize an anti-abortion movement that had operated primarily in the states. It gave the GOP a way to raise tremendous amounts of money and rally its base. But it’s wrong to attribute so much to Roe when abortion politics were polarizing well before the decision, and it’s naive to expect that its erasure will help
bridge our partisan
fractures.
For starters, the
abortion conflict
was not exactly
peaceful before Roe. In the 1960s, a doctor-led movement began pushing for modest changes to the criminal laws that had been on states’ books since the late 19th century. Those changes would allow women to have abortions in cases of rape, incest, threats to their health and certain fetal abnormalities.
Immediately, an organized antiabortion movement sprung up to oppose these changes, rejecting the idea of compromise written into early reform efforts. Abortion foes viewed the procedure as murder and fought to ban all abortions, even in progressive states: There was no compromising on life and death.
Supporters of a right to abortion, who organized a movement to repeal all criminal abortion laws, promoted their cause with similar absolutism: Nothing less than the lives and equality of women were on the line.
And contrary to Ginsburg’s account, neither side in the conflict had gained real ground in the years leading up to Roe. If anything, the pro-choice movement had suffered serious setbacks. On the political front, President Richard Nixon had championed family planning and population control and seemed likely to back abortion rights; his Department of Defense even offered publicly funded abortions for members of the armed services on military bases.
George McGovern, the Democratic nominee, had won plaudits from feminists and seemed inclined to a pro-choice position. But anti-abortion campaigners made support for abortion rights seem too risky. Nixon completely reversed course, labeling his opponent a backer of acid, amnesty and abortion, and even McGovern declined to endorse abortion rights.
Meanwhile, on the state level, voters from Michigan to North Dakota rejected changes to their criminal abortion bans. Until a last-minute veto, even New York tried to reinstate its criminal abortion law.
Much of the polarization we pin on Roe came significantly later, and for reasons having nothing to do with the Court. For almost a decade after the decision, neither party took a position on abortion. The Republican and Democratic parties alike avoided the issue like the plague.
When the parties realigned in the early 1980s, it was the result of politicians’ tactical decisions, not a reaction to Roe. Nixon experimented with using abortion as a wedge issue in 1972, but in 1976, neither candidate for the White House really followed suit.
Ronald Reagan, who had declared his opposition to abortion during a failed 1976 bid for the GOP nomination, was not nearly as shy: In 1980, his campaign realized that abortion could peel off social conservatives who might otherwise vote for Democrats.
The religious right mobilized along a similar timeline. Evangelical Protestant leaders, who at the time tended to view the anti-abortion movement as a Catholic cause, actually supported the decision for much of the 1970s. Then, in the late 1970s and early 1980s, leaders of the religious right worked with conservative operatives such as Paul Weyrich and Richard Viguerie to bring conservative evangelicals to the polls. Abortion was only one of several issuesncluding opposition to LGBT rights, no-fault divorce and the women’s movement—to turn out conservative Protestants.
In recent decades, the sources of our polarization continued to multiply. The opposing sides moved from a more abstract conflict over rights—a right to choose or a right to life—to a debate at least partly grounded in the well-being of women, families and communities.
In policy fights waged on the battlefield of the ground-level reality of abortion, both sides made appeals to scientific expertise. When elite medical organizations rejected the idea that abortion increases the risk of breast cancer and post-traumatic stress, powerful anti-abortion groups such as the National Right to Life Committee and Americans United for Life argued that the mainstream media and medical establishment lied about the harms of abortion out of political correctness.
Abortion foes rejected conclusions drawn by the American College of Obstetricians and Gynecologists and even the American Cancer Society, viewing both as biased, and launched their own research initiatives, such as the Elliot Institute and the Charlotte Lozier Institute.
This dispute over expertise and credibility goes way beyond the Court and way beyond abortion. If Roe is gone, Americans won’t magically come to some compromise on abortion; increasingly the two sides seem to live in different factual universes.
In addition, the two political parties have become invested in our polarization on abortion. Why wouldn’t they? The share of Americans who will only vote for a candidate who shares their views on abortion, though a minority, has crept up in recent years.
In a post-Roe world, the abortion wars will rage on. Indeed, they seem likely to intensify. Even as it temporarily pursued a more incremental strategy, the movement has never given up on the fight for fetal personhood.
Twenty-one states have laws that would ban all or most abortions should the Court overturn Roe, many of them stressing the idea of a right to life. With Roe gone, the battle will proceed state by state, with red states such as Alabama and Mississippi implementing laws that criminalize all abortions and swing states facing fierce fights of their own.
Eventually, abortion foes will bring the fight to Congress, and will ask the Court’s conservative super-majority to recognize a constitutional right to life. Women will still be able to buy abortion pills online or travel out of state for the procedure; to meaningfully enforce laws, conservative states will debate whether to punish patients as well as doctors.
These fights may well sweep in other issues. Although some states explicitly exclude certain contraceptives from their definition of abortion, conservatives such as Sen. Ted Cruz (R-Texas) sometimes think of common contraceptives as abortion-inducing drugs, which suggests that the next front in the culture wars would extend to birth control (and perhaps in vitro fertilization).
Progressives will keep fighting, too. Blue states will provide more expansive protections for abortion. Democrats will try to capitalize on Supreme Court retirements or even change the number of justices who sit on the bench.
You’d have to be crazy not to wish for saner, calmer politics, not least when it comes to abortion. But blaming Roe is shortsighted, and reversing Roe won’t get us there.
Mary Ziegler is the Stearns Weaver Miller professor at Florida State University College of Law and author of “Abortion and the Law in America, Roe v. Wade to the Present.”