A Post-Roe America Would Be a Never-Ending Nightmare

For women, turning abortion policy over to legislatures will mean men fighting over your rights. Photo: KAREN BLEIER/AFP/Getty Images

Whenever the constitutional right of a woman to choose abortion is in danger, anti-abortion advocates predictably recite the original talking points against Roe v. Wade and its successor decisions – especially the notion that the right to choose was invented out of thin air by a Court majority that was indifferent to the Constitution and hostile to democracy as exercised by state legislatures.

But increasingly, this litany of arguments for dispatching Roe in order to restrict abortion (supplemented by occasional cries of pain from those authentically conflicted by the issue and seeking some elusive compromise) coincides with the oddest thing: writers who come forward with arguments that transferring reproductive health care policy from the judicial branch to the legislative branch where it resided before Roe v. Wade would eventually, in the long run, become a good thing for the pro-choice cause. There was an effusion of such essays during George W. Bush’s second term when he appointed two Justices (Roberts and Alito) presumed by supporters and opponents alike to be inclined to overturn or at least dislodge Roe and the 1992 Casey v. Planned Parenthood decision that affirmed and modified it. Here’s how Scott Lemieux summed up the pro-choice, anti-Roe case in a rightly celebrated 2006 essay:

It is difficult to know when a contrarian idea has been repeated so much as to become the new conventional wisdom. At least in prominent liberal media outlets, however, the argument that pro-choicers would be better off abandoning Roe v. Wade has probably crossed the line. In The Atlantic Monthly, Bejamin Wittes’ 2005 article asserting that Roe v. Wade has been deeply unhealthy for abortion rights was followed up by a similar (although more detailed and nuanced) article in the June Atlantic by Jeffrey Rosen, also a prominent Roe critic in The New York Times and The New Republic. Richard Cohen opined in the pages of The Washington Post (after sniffing that he no longer see[s] abortion as directly related to sexual freedom or feminism) that liberals should untether abortion rights from Roe. Slate’s William Saletan took to the Post op-ed pages also to argue on behalf of moving beyond Roe and to dismiss the decision as obsolete. The argument usually contains an added political component – that overturning Roe would prove a boon to Democrats by waking a majority pro-choice electorate from its apathetic slumber.

Now that reproductive rights are clearly facing their biggest test since at least 1992, we’re seeing a revival of such arguments. The eternal refrain is that abortion policy set by state legislatures (or by Congress) will command a stronger and more durable consensus, and produce less polarization.A

Abortion rights activist Robin Marty has argued that letting red states ban abortion will galvanize complacent pro-choicers who don’t really care about abortion restrictions that are already in place:

When the entirety of the Gulf Coast is abortion-free—a swath of land stretching from Texas through the Florida panhandle—or Midwesterners have to choose between Illinois or Minnesota for abortion care, unintended childbirth will jump to historically high levels. Abortion bans would exacerbate the already unaddressed issues of maternal mortality and child mortality, both of which the United States has the worst rates for among all developed nations. The real-life consequences of forced childbirth will become real for Americans for the first time since 1972.

That’ll teach us!

At least Marty understands that the anti-abortion forces controlling red-state legislatures aren’t going to say “I feel so much better now!” if Roe is reversed, and eagerly seek compromises, which appears to be the delusion embraced by the “uneasily pro-choice” Megan McArdle:

[I]t is Roe, more than any other opinion, that is driving both the radicalization and the judicialization of American politics, as pro-lifers fight like caged tigers to amend the law through the only avenue left open to them….

[T]he way to make abortion less contentious is to throw the matter back to the states so that people can argue about it. Debating the difficult decisions regarding gestational age and circumstances would force people to confront the hard questions that abortion entails, which tends to have a moderating effect on extreme opinions.

Returning the matter to the states would give most people a law they can live with, defusing the rage that permeates politics and has more than once culminated in acts of terrorism against doctors who perform abortions.

One wonders if McArdle and the voices which echo the fantasy of a post-Roe peace offensive have ever spent any time among anti-abortion activists, or observing a state legislature. Lemieux made short work of this argument back in 2006:

The pre-Roe period in state legislatures does not in any way comport with the romantic myths now being peddled by anti-Roe centrists. Far from being satisfied with legislative compromises, anti-choice activists were so well-mobilized in response to a few legislative reform laws that liberalization at the state level was essentially dead by the time Roe was handed down in January 1973…. The National Review wrote more about abortion in the three years before Roe than in the three years after.

The timing of the new arguments for, as McArdle puts it, “letting Roe go,” is astonishing. We are in the midst of a feeding frenzy of poorly-considered abortion restrictions that Republican-controlled legislatures are passing as fast as they can meet. Is that really an advertisement for turning the entire subject over to these same people? Yes, some of these laws are designed to produce litigation leading to the reversal or curtailment of Roe. But anyone who thinks anti-abortion activists and the major political party they control don’t want actually to ban most if not all abortions really hasn’t been paying attention very well for the last 40-some-odd years. Right now they are arguing with each other over issues like rape exceptions that affect a tiny handful of procedures, in the context of outlawing 99 percent of abortions or more. There’s no longer much of any visible opposition within the GOP’s cadres of elected official to the proposition that abortion should generally be illegal. The last pro-choice Republican members of the U.S. House are gone, with just two GOP senators expressing any audible doubts about outlawing abortion.

And lest we forget, the official platform of the Republican Party has since 1980 endorsed a Human Life Amendment to the Constitution that would not simply reverse Roe, but would endow the “pre-born” from the moment of conception in all 50 states with protected status as proto-citizens. Have they been kidding all these years? Are they just upset about judicial tyranny? Will they happily smile upon states in a post-Roe environment that accept what so many of them blithely call The American Holocaust? I don’t think so. The anti-abortion movement will be at least as avid as it is today to stop all the “baby-killing” when the constitutional obstacle to its goal is discarded.

The argument that returning abortion policy to the realm of plain politics will somehow broker foster peace and stability bugs me the most. It involves, of course, women giving up on this idea of having any “reproductive rights” they can rely on. They would henceforth depend on who controls their state’s legislature or the Congress a year or two down the road. Yes, conservative gains on the Supreme Court are one reason for the recent orgy of anti-abortion legislation in the states. But the other is simply that Republicans flipped 21 state legislative chambers and six governorships in a 2010 midterm landslide where abortion policy was rarely a major issue, and held on to most of those gains at least up until last year’s midterms. Should a woman’s ability to control her own body be contingent on every short-term political trend in whatever place they happen to live? Are red-state women just out of luck forever, unless they literally move like war refugees?

Beyond that, battles over abortion policy in a post-Roe world would dominate every state legislative session in any state where one party or the other doesn’t have complete control. Just tracking the bills being introduced daily to restrict this or that procedure or proscribe this or that motive for an abortion or shut down this or that clinic would require multiple Guttmacher Institutes, NARALs, and Planned Parenthood advocates. Should women really have to endure what might never be a better choice than illegal abortions or perpetual uncertainty?

My colleague Andrew Sullivan hopes that all this inequality and instability might be prevented by preemptive federal legislation setting abortion policy nationally, as proposed by Senator Elizabeth Warren (Warren, of course, is offering her proposal strictly as a back-up in case Roe is reversed, a possibility she loathes). Just maybe, if one party or the other has a governing trifecta with a big majority in the House and more than 60 Senators (or action to abolish the Senate filibuster), it might be able to pass a national abortion law–which would remain in force until the next election. In the last half-century, there have been only ten years in which one party controlled the White House and Congress. That’s a slender reed on which to place a national “solution” to abortion policy.

All in all a post-Roe world is likely to be a hellscape of endless battles, unrelieved uncertainty, and above all peril for women. However fragile the right to choose may seem today, it’s the Rock of Gibraltar as compared to a situation where every day could bring new laws and policies restricting choice, discouraging providers, and harassing those in need of services.

It is especially troublesome when allegedly pro-choice men persist in offering to bargain away–to quite literally compromise–women’s rights, in the pursuit of an illusory peace with those who don’t acknowledge those rights at all. My colleague Rebecca Traistr is right to express fury at their presumption. As presidential candidate Pete Buttigieg recently said:

“I think the dialogue has got so caught up on where you draw the line that we’ve gotten away from the fundamental question of who gets to draw the line,” he said. “And I trust women to draw the line.”

That’s a good place to start in contemplating the future of reproductive rights.

A Post-Roe America Would Be a Never-Ending Nightmare