With the impending retirement of Supreme Court Justice Anthony Kennedy, President Donald Trump has the chance to nominate a replacement who could well represent the fifth vote to overturn the Supreme Court’s decision in Roe v. Wade.
In the first place, even if Trump’s pending pick is a vote to overturn Roe v. Wade, it is anything but certain that the court will actually vote to overturn the landmark 1973 decision. After watching Chief Justice John Roberts repeatedly contort himself into a pretzel in order to save Obamacare, it is clear that that Roberts is, quite frankly, scared of casting a deciding vote on any issue that would (in his opinion) make the Supreme Court the subject of widespread public ire.
And although Justice Neil Gorsuch has thus far been a solid conservative vote on the court, he has not yet had opportunity to go on record with his views as to whether Roe v. Wade should be overturned.
Nonetheless, the possibility that Roe v. Wade might be overturned is, for the first time since perhaps 1992, a real one.
Liberals are reacting to this possibility with full-blown public panic, predicting that abortion will become a criminal offense on a widespread basis — or at least, that it will become criminal in several states. Expect to hear the familiar refrain about “back alley abortions” quite a lot during the next few weeks. They also predict a massive voter backlash against Republicans if Roe v. Wade is overturned.
A substantial amount of evidence suggests that none of this will ever take place.
In the first place, virtually no abortion restrictions are likely to pass on a national level. We are currently experiencing nearly the high-water mark of possible Republican power at the national level, and Congress does not have a reasonable hope of passing even a 20-week abortion ban. Not only could the measure not defeat a filibuster, but it did not even have majority support in the pivotal January vote.
At the state level, it is also highly unlikely that any state in the union would make abortion broadly illegal. For evidence, look no further than South Dakota, which was accurately described in 2006 as the “most pro-life state in the country.” The legislature that year passed a bill that would make nearly all abortions illegal, but when the measure was sent to the voters in a referendum, it was defeated by more than a 10-point margin.
If a general abortion ban couldn’t pass in South Dakota a dozen years ago, it could not pass any state in the union now.
Here is what would likely happen: Many states would likely pass legislation banning abortion after somewhere between 20-24 weeks except in cases of true medical necessity. Probably most states would pass legislation requiring parental consent or notification for minors to get abortions; almost 80 percent of Americans nationwide support such legislation. Other states will probably re-pass legislation requiring doctors who perform abortions to have admitting privileges at nearby hospitals in accordance with safety standards that apply to other outpatient surgical clinics. It’s possible that some states may pass other legislations that enjoy overwhelming majority support, such as banning abortion for sex-selection purposes. Other states will continue to leave abortion legal for almost any reason whatsoever, at any time.
For the vast, overwhelming majority of abortions — elective abortions that occur before the 20th week of pregnancy — they will remain exactly as legal as they were before Roe v. Wade was overturned. However, legislatures will be able to pass restrictions on certain kinds of abortion decisions that are, in the first place, completely unnecessary, and in the second place, opposed by supermajorities in almost every state.
In other words, it is likely that the United States’ abortion regime will look more or less like Europe’s, where a comfortable consensus has arisen in most countries that abortions prior to the 20-24 week window are generally legal, and abortions after that window are generally illegal without a compelling medical need.
And as for that voter backlash against the GOP? It is also extremely unlikely to happen.
It is true that the majority of the public has consistently expressed support for Roe v. Wade, as recent polls have confirmed. However, that is largely due to the fact that the Democrats — with the willing help of most of the American media — have successfully demagogued the issue to the point that people believe that if Roe v. Wade is overturned, abortion will become mostly illegal.
More detailed polling of the public’s views on abortion suggests that they don’t at all support what Roe v. Wade actually stands for, and would be broadly comfortable with abortion legislation that is much more restrictive than the United States Supreme Court currently permits with its abortion jurisprudence.
Practically speaking, Roe v. Wade has been interpreted by both the Supreme Court and lower courts to stand for the proposition that abortion should be legal under any circumstances; however, less than 30 percent of Americans believe that abortion should be legal “under any circumstances.”
The University of Chicago’s General Social Survey has kept track of the public’s attitude toward abortion for years and has consistently found that Americans believe abortion should be legal in cases where the pregnancy is a result of rape, or where there is a chance of serious birth defect, or to protect the woman’s health, but think abortion should not be legal if, for example, the woman simply does not want more children, or can’t afford more children, or just “for any reason.”
This all strongly suggests that once Americans learn that vast majorities of women are not being forced into back alleys for abortion, they will, in fact, be quite comfortable with abortion restrictions that states might be reasonably expected to pass. And if a state does overreach, the experience of South Dakota suggests that the representatives of that state will be punished at the ballot box and the restrictions will be overturned.
It may, however, slightly harm the GOP at the national level for another reason: If the fight over abortion becomes a statewide one rather than a national one, and the public settles in to that fact as a long-term reality, then one of the GOP’s most effective rallying cries for federal elections will have been lost. The voters who have held their noses for odious Republican candidates because of the hope of overturning Roe v. Wade are legion, and they will have lost one of their primary reasons for nose-holding, especially during presidential elections.
In such a scenario, the GOP would have to be more responsive to the overall concerns of the Republican voting base instead of just waving the bloody shirt every two years, and that’s something that would benefit the country as a whole.