The Supreme Court ruling that came down on Friday overturning Roe v. Wade is essentially the same opinion as the draft that was leaked in early May; Justice Samuel Alito’s responses to the other justices’ concurrences and dissents are basically the only changes. One thing of note is that, while the vote to uphold the Mississippi law that precipitated the case (and which banned abortion after 15 weeks of pregnancy) was 6-3, the vote to strike down Roe altogether was 5-4: Chief Justice John Roberts was alone in voting to uphold the Mississippi law while retaining the Roe principle of a constitutional right to abortion.
As I laid out in a Bulwark essay last month, I am a moderate pro-choicer—that is, one who is fine with some restrictions on abortion, particularly later in the pregnancy. I believe that both female bodily autonomy and the value of fetal life in the womb, especially in the later stages of pregnancy, are principles worthy of respect.
Pro-choicers are wrong to depict pro-lifers as misogynists or subservient “handmaids”; pro-lifers are wrong to depict pro-choice Americans as libertines who hate babies. Pro-lifers often make little effort to understand why an unwanted pregnancy can feel like an intolerable imposition on one’s liberty even if one is fine with giving the child away for adoption after birth. And pro-choicers often make little effort to understand why pro-lifers find it appallingly hypocritical that the value of fetal life—right down to whether one calls it a “baby” or a ”fetus”—is determined solely by whether it is “wanted” or not.
All of which is to say that I would have much preferred if Roberts had been able to peel either Gorsuch or Kavanaugh off the conservative majority. And even leaving aside the welfare of women, I think the country would have been much better off without (another) political firestorm.
So what comes next? On Friday, The Bulwark ran a fine piece by AEI’s Brent Orrell on what pro-lifers should do post-Roe to promote a genuine “culture of life” in America and support women, families, and children. I would also urge pro-lifers, as they think about how to follow up on this long-desired policy victory, to keep two important limiting principles in mind.
First, Republicans and conservatives must remain serious about their commitment to federalism. That means not seeking to impose a national law in Congress restricting abortion, but leaving abortion laws up to the states. It also means not attempting to ban out-of-state travel for the purposes of getting an abortion. Such bans, as Justice Brett Kavanaugh indicated in his concurrent opinion, would be an unconstitutional infringement on the freedom of interstate travel. Both abortion-rights states and private charities can pitch in to ensure that low-income women have access to such travel.
Second, officials in states that institute a near-total ban even on first-trimester abortion procedures may be tempted also to ban the use of the “abortion pill,” mifepristone (RU-486). They should resist the temptation. Not only would enacting such a ban invite a new fight with the federal government (“States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” said Attorney General Merrick Garland on Friday) but implementing it would be very difficult, since its enforcement would likely involve an aggressive campaign to stop or track the mail delivery. In practice, a ban on abortion pills would require a Communist Romania-level police state.
And what about the other side? Although some pro-choicers have been calling for Congress to codify Roe nationwide, it seems unlikely that Democrats have the votes to do so. Besides, a national law protecting abortion would still leave abortion rights at the mercy of political shifts (what one Congress can do today, another Congress can undo tomorrow) and even open the door to a push for a national abortion ban.
Instead, as pro-choicers increasingly turn their attention to fighting against abortion restrictions at the state level, I want to make one very short-term, one long-term, and one very long-term suggestion for pro-choicers.
In the short term, pro-choicers should focus on assistance to women in states with “trigger laws”—abortion-restrictive laws already in place, just waiting the overturning of Roe to be activated—who are suddenly having to deal with clinics closing and abortion appointments canceled.
In the longer term, pro-choice activists should grapple with the question of whether to expend massive political capital by trying to restore some semblance of the Roe status quo nationwide or to settle for a compromise: for instance, to live with abortion restrictions in some states as long as (1) they do not have time horizons that are too short (would the 15-week ban in some states be more acceptable than the 6-week ban in Ohio?); (2) they include reasonable exceptions permitting abortions when the life of the mother is endangered and in cases of rape and incest; (3) they do not interfere with interstate travel; and (4) they do not involve intrusive policing of abortion-pill use.
In the still longer term, the pro-choice camp must get much more aggressive about promoting (and facilitating access to) birth control. Lack of such access is one of the reasons abortion rates are much higher among black and Hispanic women than among white women. It’s all very well to talk about systemic inequities, but more outreach to make sure that low-income women not only have options for free or low-cost birth control but also know about those options is absolutely essential.
Those who think that the Roe v. Wade reaction is going to swing the midterm elections are mistaken. Whatever people feel about abortion rights, they are not on most people’s short list of political priorities, and those who think abortion rights are one of their most important issues already vote Democrat. This election will be decided by what more often than not decides national elections — how people feel about the economy (as Jimmy Carter and George H.W. Bush can tell you).