How Overturning Roe v. Wade Can Shatter American Politics
The conservative SCOTUS majority seems tilted towards overturning Roe v. Wade which is set to cause massive waves throughout state and national politics
Last week, the Supreme Court heard oral arguments on a Mississippi law that would ban abortion after 15 weeks, a law implicitly crafted to challenge the nearly 50 year precedent of Roe v. Wade on abortion. Based on statements and questions from conservative Supreme Court Justices (who hold a 6-3 majority on the court) all signs seem pointing towards the court overturning Roe when the decide the case in early Summer 2022. While this will undoubtedly affect our American political system in a multitude of ways, Abortion is a complex social issue that deserves a nuanced perspective to best understand the full ramifications for such a decision and what it would mean for the country going forward.
What is the current state of Abortion in America?
Since 1973, the decision of Roe v. Wade has been the law of the land for abortion in the United States. While Roe v. Wade legalized abortion across the country with varying levels of state restrictions allowed (most linked to the point of viability), the 1992 Planned Parenthood v. Casey decision further codified these rights introducing the “undue burden” standard that no state restriction could place an undue burden on a woman seeking an abortion. While these decisions have been challenged many times, most recently through a Texas law that allows civilians to sue abortion providers for performing post six week abortions, taking the burden off the state and thus being given a stay by the Supreme Court, the current layout of state laws largely reflects the precedent of Roe.
Currently in the United States most states ban abortion at either 20 weeks, 24 weeks, or at the point of viability generally considered to be between 22 and 24 weeks, and with varying exceptions for health concerns and rape/incest. In the event that Roe v. Wade is overturned control over laws will be placed in the control of state legislatures, many of which have already made moves to ban abortion if Roe is overturned. 12 states have pre-existing “trigger laws” that would automatically go into effect restricting abortions in varying amounts ranging from all out bans to limits between 6 and 15 weeks. Meanwhile several states have explicit laws on the books codifying legal abortion up to or around viability, and the state of abortion would not change in these states if Roe were to be overturned.
While public opinion surrounding abortion as a whole remains relatively split throughout the country, the publics perception of Roe v. Wade itself is heavily skewed towards not overturning. In some polls as much as 70% of the country thinks that Roe v. Wade should not be overturned. While this data point could be flawed in some regards, namely that most average people do not have a solid perception of what exactly Roe v. Wade is other than it being the abortion case, it is still an important measure in seeing how the public would react in the event Roe is overturned.
What have we learned from the Supreme Court?
Last Wednesday SCOTUS heard oral arguments on a 2018 Mississippi law that would ban abortion after 15 weeks. This law as, court watchers will remember from the time, was implicitly crafted as a challenge to the core framework of Roe v. Wade and it being brought forward now gives the court’s soft 6-3 conservative majority the opportunity to reverse Roe v. Wade if it so chooses. The initial reception from the oral arguments appeared to err on the side that Roe could be overturned, some even saying that it is likely or almost certain that it will be.
The main reasoning for this confidence comes from several lines of questioning from the conservative justices, especially the three Trump nominated justices, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett whose exact opinions on Roe have yet to be confirmed. In a line of questioning, Justice Kavanaugh argued against Stare Decisis for Roe, the idea that the court has already decided on the case and precedence should be followed, by bringing up several cases throughout the history of the court where serious precedent was overturned and for good reasons. The most evident case of this is that of Brown v. Board of Education which overturned the nearly 60 year precedence of Plessy v. Fergusson which established the “separate but equal” standard for school segregation. Justice Gorsuch has also previously professed his support for overturning past decisions should the court find those decisions egregious, something that has keyed many to be his blessing towards the idea of overturning Roe. Justice Coney Barrett was largely accosted by Democrats at the time of her confirmation for refusing to concede whether or not she would vote to overturn Roe, in her past writings as a legal professor she voiced opposition to the decision.
Meanwhile the liberal minority of the court compromised of Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan all stood staunchly opposed to the possibility of upholding the Mississippi law citing the precedence of Roe v. Wade as the law of the land. The two most conservatives members of the court, Justices Samuel Alito and Clarence Thomas have already made themselves clear that they would support overturning Roe, as has been proven in many decisions in the past few years where they consistently dissent 2-7 in many cases. Chief Justice John Roberts, who despite being a Republican appointed justice has largely been seen as the swing vote in recent decisions, in many cases siding with the liberal minority in 5-4 decisions. Much of Roberts ideology has been based on maintaining the courts legitimacy and respect by following precedence and avoiding court-packing schemes. Despite this, Roberts will ultimately not be the decider in this case as even if he does side with the liberals, Roe could still be overturned 5-4 if Barrett, Kavanaugh, and Gorsuch vote in unison.
Will Roe v. Wade be overturned?
It is important to note the Abortion in the United States is self evidently an extremely contentious issue. In most cases those most ardently on either side are speaking past each other, and honest good faith conversations are hard to come by. However in the context of Roe v. Wade, regardless of your opinions on the Abortion issue itself, there are certain objective realities to the case law and it’s implementation that are very nuanced.
The original 1973 Roe v. Wade decision found that a woman’s ability to seek and chose to have an abortion falls under the 14th amendment’s due process clause that provides a right to privacy. Under this decision the court decided that fetal viability, 24-28 weeks at the time, would be the standard for allowed abortions. While there is no way to fundamental unlink the case of Roe v. Wade from the overall abortion debate, the actual decision of whether or not to overturn has very little to do with the abortion debate at large, nor should it.
The common conservatives critique of the Roe v. Wade decision is that it is a clear cut case of judicial activism, justices using their decisions to essentially enshrine new laws that do not exist, and is therefore a wrong decision that should be overturning. In terms of jurisprudence this case does hold water. The 14th amendment ratified in 1868, clearly does not imply a right to abortion. This is evident by the fact that nearly every state in the country had or past full out abortion bans in the late 19th century, and these were not questioned or challenged with regards to the 14th amendment. Even though Roe and the overall Abortion debate are intrinsically linked, modern arguments for or against abortion such as bodily autonomy or when a life truly becomes a person are irrelevant to the actual decision of whether or not to uphold Roe. Similarly that status of abortion laws in other countries (which was brought up in arguments at SCOTUS last week), while being an important maker of the United States global status, again have no bearing on the decision in this case.
These arguments, when taken in aside from the extreme polarization of the abortion issue, fit in very nicely with the established history of the court. This brings me to believe fairly strongly that Barrett, Kavanaugh, and Gorsuch will vote to overturn Roe come next Summer when the decision on this case is to be made, and the can do so on very solid footing. Many of the justices have directly said that the issue of abortion as a whole is not being overturned, simply the idea that the Supreme Court should be the decision maker on this issue. Justice Gorsuch openly welcomed Congress to pass a federal law allowing abortion, and even the most conservative voices of Alito and Thomas would be hard pressed to not uphold a federal law of this nature.
What will happen if Roe v. Wade is overturned?
If Roe is overturned in June/July of 2022, abortion is set to become one of the focal points of American politics going into the midterm elections and beyond, and could have devastating effects for the American electorate going forward.
Since the decision of Roe v. Wade in 1973, staunchly pro-life conservatives have been part of the backbone of the Republican party, and one of if not the strongest single issue voting bloc. This begs the question of if there single wish of overturning the Roe precedence is granted if they will continue to turn it out so strongly for Republicans at the national level. Meanwhile, while pro-choice voters have certainly been mobilized by Democrats in recent years, there has been no legitimate threat to Roe until now. This could cause a massive stir among Democrat voters, especially young voters who have largely turned out in weak numbers especially during midterm elections.
There is also a possibility that the Biden administration, still holding it’s very thin trifecta control up until at least the 2022 midterm where currently a red wave of dramatic proportions is predicted, could move forward with a court packing scheme that proved salient in the runup to the 2020 election as a response to Trump’s ability to fill three Supreme Court vacancies in four years. While it is doubtful that given the current composition of the Senate a court-packing scheme could be put in place, it is a promise that Democrats could make to voters in order to garner support. However, any push for court-packing could be a poison pill for Democrats as it could reinvigorate pro-life conservatives who no longer have anything to turnout for.
While the national situation revolving around abortion in a post-Roe scenario is very up in air, something much more practical is the passing of state laws in the post-Roe environment and backlash at the state level from voters. The combination of existing anti-abortion laws currently nullified by Roe and the 12 trigger law states would likely result in varying levels of abortion restrictions in at least 20 states. While many states such as Texas and Mississippi that currently codify abortion restrictions would be likely to stay in place, there would surely be massive debates in swing states with Republican control such as Georgia and even New Hampshire that could push for abortion restrictions, much to the dismay of their electorates.
In many ways this situation where abortion is legal in half the states while being banned at varying levels in the other half also creates a two tiered system where many lower class women, who are disproportionately seeking abortions to begin with, are unable to obtain them in their own states and would be very expensive to travel to seek an abortion in a legal state. Meanwhile middle to upper class women will largely be able to obtain abortions in legal states with little trouble.
Regardless of the exact electoral backlash in the event Roe v. Wade is overturned, doing so would launch the issue of Abortion from a largely hypothetical and moral one to being very tangible and real across the country. It would also undoubtedly increase the polarization in our current political climate with one of the most poisoned culture war issues being pushed to the forefront of political debate.