Justice Anthony Kennedy’s retirement from the Supreme Court immediately triggered speculation that a more conservative replacement could be the deciding vote to overturn Roe v. Wade. Whether this would happen immediately, or over time in a series of incremental decisions, or not at all, is a matter of debate. But one thing is for sure – if Roe did get overturned, it would have a transformative effect on U.S. politics.
The Supreme Court’s 1973 Roe decision was one of the most politically consequential events in American history. Modern politics could very easily be divided into the pre-Roe and post-Roe era. The backlash against Roe became a major rallying point for religious conservatives, who have been central to every Republican victory since Ronald Reagan’s 1980 landslide. It played an important role in the shift of Catholics to the GOP. It made judicial nominations into a major issue, forced conservatives into focusing on grooming potential justices and getting them nominated and confirmed, leading to decades of bitter political fights.
“National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided,” the late Justice Antonin Scalia wrote in his 1992 dissent in the Planned Parenthood v. Casey case. He added, “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court.”
The ripple effects of Roe are arguably infinite and more difficult to measure. Without Roe, does the push for getting more conservative judges confirmed turn into into a real political movement? Do presidential nomination fights escalate, fueling historic rancor among the parties? Absent the passion on the right, does the court have as many conservatives? What other issues (commerce clause, free speech, second amendment) are then impacted? Does Bush v. Gore go the other way? Absent the force of the judicial issue, do religious conservatives suck up their misgivings and provide the votes put Donald Trump over the top?
The existence of Roe changed the calculations that voters make in all elections. It’s made it a lot easier for Republicans to be elected in blue states and Democrats in red states. After all, given that Roe limits the ability of states to make abortion law, it’s much easier to take the issue off the table at the state level. Gov. Scott Walker and former Gov. Chris Christie both won states that were carried by former President Barack Obama as pro-life Republicans. No doubt, it helped that their views on abortion couldn’t legally translate into taking that right away.
At the national level polling has consistently shown that while more Americans favor legalized abortion, those who vote on primarily on abortion issue tend to be on the anti-abortion side. For instance, a study by Pew from the 2012 election found 53 percent of Americans thought abortion should be legal in most or all cases, compared with 41 percent who said it should be illegal in most or all cases. Yet 73 percent of those who thought abortion should be illegal in all cases and 55 percent of those who thought it should be illegal in most cases said the abortion issue was “very important” to their vote, whereas among those who thought it should be legal in all cases, only 33 percent said it would be “very important” and the number was even lower — 22 percent — among those people who said it should be legal in most cases.
One possible explanation for this is that the existence of Roe makes many pro-abortion rights voters feel as if there’s no real threat to abortion rights, making it easier for them to vote for somebody who disagrees with them on abortion. Because anti-abortion voters are trying to change the status quo, they’re more motivated on the issue even though they’re smaller in number.
How could the overturning of Roe change this dynamic? On one side, abortion rights voters will no longer be complacent, so they are likely to weigh the issue as more important to them as they consider who to vote for. At the same time, the issue of judges may take on added importance, as the threat of Roe being overturned (which is often used by Democrats to motivate voters) actually becomes reality. But on the flip side, those who favor more abortion restrictions, unhindered by Roe, may be even more motivated to turn out. Not only will they be galvanized by the fact that decades of fighting to change the balance of the Supreme Court actually paid off, but now the people they vote for will be in a legal position to enact stricter abortion laws.
What’s likely to happen is that the differences between red states and blue states are going to become even wider and more defined, with blue state Republican governors and red state Democratic governors becoming more rare. Alternately, we may see more ambitious southern Democrats support abortion restrictions while more blue state Republicans become pro-abortion rights. Regional differences, thus, may once again become more significant than party differences.
The intraparty politics will also get interesting. Republican candidates who may not be anti-abortion rights in their hearts, have been able to hide behind Roe to avoid having to actually vote for laws that would take away abortion rights. Democrats, meanwhile, have moved in the direction of taking a maximalist position on abortion that puts them at odds with the public — according to Gallup polling. While 60 percent of the public supports legal abortion in the first three months, that number drops to 28 percent in the second trimester, and just 13 percent in the third trimester. While there is overwhelming support for allowing abortions in cases of rape, incest, and life of the mother, the practice gets less popular in other specific situations and the number falls to 45 percent when asked if abortion should be legal “when the woman does not want the child for any reason” with 53 percent saying elective abortion should be illegal.
Opponents of abortion are often challenged on the difficult parts of their position, such as cases of rape. In a post-Roe world, supporters of abortion will have to be challenged on their views on late term abortion. Republicans, who are now generally united on judges, will battle amongst themselves over how aggressively to pursue abortion restrictions, while Democrats will fight over how broadly to support them given that the preferred liberal position (to allow abortion at any time for any reason) is extremely unpopular.
Most people writing about or involved in politics today don’t really remember a world before Roe. Looking forward, the possible scenarios that could play out politically in a world in which Roe is overturned is almost unimaginable.
