One of my favorite sayings has always been “Be careful what you wish for. You may get it.” And if life is remotely fair, it could well come back in spades to haunt supporters of the Supreme Court’s apparent decision to overturn the 1973 Roe v. Wade abortion ruling.
Before explaining why, I should briefly re-lay my cards on the table on abortion generally. As explained in this May, 2019 post I’ve supported Roe because of all the evidence that it conforms with a strong, consistent, public consensus in favor of a thoroughly reasonable compromise solution to the abortion dilemma. Specifically, the national default position is that abortion should be legal, but individual states, reflecting the beliefs of their populations, should be able to impose some restrictions.
In other words, Roe never established an unqualified right to abortion – because unless we’re talking about hermits, rights in human societies, including those enshrined in the Constitution, can never be unqualified. There are simply too many rights, and they too often collide with other rights and imperatives. So durable balances need to be struck, and from time to time, they need to be modified in light of changing circumstances.
They don’t make everyone happy, and they leave important inequities. But given the existentially heated and fiendishly complex nature of abortion, despite all the resulting and inevitable controversy stirred by the ruling and by the underlying issue, Roe succeeded on those crucial grounds. In everyday parlance, it was “good enough.”
At the same time, almost none of Roe’s opponents really seem to believe that there is an unqualified right to life, much less that it begins at conception. Certainly, that’s not an argument made by the leaked Supreme Court ruling. Nor is it claimed by the Mississippi abortion law that the Court is still considering, or by the even stricter new Oklahoma statutes.
The above description of Roe doesn’t take into account the argument that the decision fails by purely legal and Constitutional standards. Indeed, even leading pro-choice Constitutional experts have agreed with that judgment. But the underlying assumption that law stands clearly apart from politics can’t withstand serious scrutiny – and certainly not in any system of representative government. In such systems, legitimate laws can’t help but originate ultimately in that society’s values and culture, and politics is one indispensible method of figuring out how to enable those preferences to govern behavior and resolve disputes in mutually acceptable ways.
As I noted in the 2019 post (quoting a prominent historian of the Constitution), a crucial test that the Supreme Court must pass, (including for its own public support), is avoiding getting too far ahead of public opinion or trailing too far behind. That is, responsible justices will be exceedingly mindful of politics, its changes, and the trends underlying them. For the past half century, the Supreme Court justices who upheld Roe achieved that objective.
So assuming Justice Samuel Alito’s draft ruling stands, how is it likely to backfire on Roe opponents? For starters, they’ll need to start thinking seriously about a challenge that the 1973 ruling has enabled them to duck for decades, especially if Roe’s demise does significantly reduce the numbers of abortions. The Roe opponens will need to deal with making sure that all the babies that aren’t aborted under the new regime have a real chance of leading satisfactory lives. After all, if you believe in the right to life, how can you neglect the quality of that life?
So unless there’s any chance that private adoption services will be able to place all the newborns with competent, caring parents (spoiler alert: there’s no chance), then the biological mothers and, when they stick around, fathers, will need a wide range of pubicly provided services and supports. In other words, Hello, Big Government. And those services and supports, which may have to be very long-lasting for the many new moms who are teens, won’t come cheap. So get ready for much higher taxes or deficit spending or some combination of the two.
For older new mothers who need to work, these supports will need to include paid family leave – whether by government or employers or some combination of the two. And if the goal is to help all the new children, this leave will need to extend for years – not just a few weeks. Moreover, this paid leave will also be needed even for many mothers who have working spouses or stable partners of some kind, unless these spouses or partners earn enough to pay all the household’s bills on their own.
Of course, there’s an alternative for the working mothers: Taxpayers spring for childcare. For as long as it’s needed. If, as is likely, Roe opponents don’t want governments handling this responsibility, they’ll need to admit many more immigrants to fill all the new positions private providers presumably would create. But no responsible Roe opponent would ever permit just anyone care for children, whether in government or for-profit or non-profit outfits. So extensive vetting and even training systems will need to be put into place, too.
In addition, for all the states that ban abortion very early in pregnancies, when many women aren’t even aware they’re pregnant, it’s only fair that they hand out accurate pregnancy test devices or pay for tests by physicians’ offices. That is, more expenses – and taxes or debt.
Finally, Roe opponents may well rue its demise this year on political grounds. It’s true that they may be able to fire up their voters to turn out to defend anti-Roe candidates in this year’s midterm Congressional elections as Roe supporters are to mobilize theirs on behalf of office-seekers pledged to codify it as federal law, and/or support nominated judges likely to try restoring Roe or at least its protections.
But it’s also true that whereas before yesterday, Roe supporters (who tend to be Democrats and Democratic leaners, just as opponents trend the opposite way) had almost no issues with which they could inspire their voters (because of the Biden administration’s failures on so many fronts), now they may have one issue that can help close the so-called enthusiasm gap and improve their performance this fall. So that shapes up as a net loss for Roe opponents and the GOP overall.
The opponents’ losses could be even worse, however, since (as shown by the poll linked above) Roe is pretty popular with the moderate Republicans who deserted the party in the 2020 presidential election and helped Joe Biden win the White House. They may not be incredibly numerous, but by definition they’re often found in many of the swing districts and states that could greatly determines which party controls the House and Senate. (It’s their presence that makes these precincts up for grabs – when it’s not the presence of moderate Democrats.)
Nonetheless, it’s also distinctly possible that such a Roe effect may not materialize, or flare briefly and then fade between now and November. (That’s clearly been the case so far for the January 6 Capitol riot, to my surprise.) Further, abortion won’t be the only issue on voters’ minds, and any number of events could intervene in the weeks and months ahead to alter the political odds.
Whatever the political impact, however, the nation seems fated to deal with some serious and potentially tragic real world fall-out from the Supreme Court’s seeming plans for Roe, unless the justices reverse course. Is it too much to hope that they remember another of my favorite expressions: “If it ain’t broke, don’t fix it”?