By David ThorntonThe Supreme Court listened to oral arguments on Dobbs v. Jackson Women’s Health Organization this week. The case is colloquially known as “the Mississippi abortion case” and hopes are high among the pro-life community that the Court will use the case to strike down precedents such as Roe v. Wade and Planned Parenthood v. Casey that define American abortion jurisprudence.
Personally, I am pro-life and believe that Roe was bad law, but I’m skeptical that there will be a pro-life grand slam. It is a real possibility, however. Court watchers who listened to the oral arguments and are now reading tea leaves to determine how each justice will vote see a strong chance that the Mississippi law will be upheld and that there will be at least a partial rollback of abortion rights.
It’s important to note that, at this point, no one knows how the case will be decided. The justices have not even taken a preliminary vote to see where everyone stands. The process of reaching a majority decision takes several months.
So what happens if Roe is overturned? The most obvious answer is that many pro-lifers would ultimately be disappointed because overturning Roe would not mean that there would be a national abortion ban. Rather, the issue would revert to the states, which would have an expanded authority to regulate and restrict abortions. We would probably see about 50 different abortion laws that would vary from very permissive to outright bans.
Overturning Roe would have very little effect on pro-choice states. Liberal abortion laws would stay in force and clinics in these states might even see a surge in business as pro-life states crack down. Pro-choice charities would help to fund trips for red-state women to pro-choice areas.
Politicians in red states would be placed in an awkward position. For decades now, pro-life politicians have taken the position that they would ban abortion if they could. They could even pass restrictive abortion laws knowing that the courts would never allow them to take effect.
In the aftermath of a Roe reversal, the wheat would be separated from the chaff. Some pro-life politicians would be revealed to be pro-life in name only. When the chips are down, there might be quite a few politicos who aren’t ready to vote for an abortion ban, especially given the intense pressure that interest groups on both sides would place on such a vote. Many moderate voters in red-states are not crazy about the idea of restrictive abortion laws.
A large part of the abortion battle would move to the states where new restrictions were being considered. Rather than having the abortion battle fought in Congress and the Supreme Court, the battleground would be state legislatures. This isn’t a bad thing. In fact, it’s really what the Founders intended (the issue of abortion probably being horrific to them notwithstanding).
But this doesn’t mean that Congress would be totally off the hook. Democrats are already planning to campaign on a bill that would codify Roe in 2022. It’s likely that congressional Republicans would respond with a bill that would ban abortions nationally.
Both bills would be mostly political theater for fundraising, however. As long as the nation remains divided on the issue and the filibuster remains in place, the chances of either side passing a bill to enshrine its abortion preferences into law is about as likely as Donald Trump suddenly finding his missing votes and being sworn in as president. That is to say, it ain’t gonna happen.
Finally, there is a possible change to the national political dynamic that could come from overturning Roe that could be surprising. Over the last few elections, I talked to a lot of people who didn’t like Trump or the Republicans but planned to vote for them because of abortion. An unintended consequence of overturning Roe could be that this stumbling block is removed. If the main reason to vote Republican was to put justices on the Court that would overturn Roe and that mission is accomplished with state-level Republicans passing pro-life laws, there might be a lot less incentive to vote for and donate to bad Republican candidates.
It is not a fait accompli that Roe will fall. I still think that the Court may move the ball downfield toward a reversal but stop short of going all the way to the end zone. No matter how the Court rules, however, it is going to be a bombshell that reverberates through the political landscape.
And the abortion battle won’t end. There will be legislative fights in the red states while pro-life groups will have to concentrate on winning hearts, minds, and ultimately votes in blue states. Whatever the promises that have been made, for better or for worse, abortion will not be ended by judicial fiat from on high.