For the first time since 1992, the end of Roe v. Wade is a real possibility. Back then, the Supreme Court defied widespread expectations by sticking with the 1973 ruling’s core holding that legislatures could not prohibit abortion. A lot of Republican politicians were relieved because they thought that a reversal by the court would have caused a political backlash. (They lost the next election, anyway.)
The circumstances are different now, as a Supreme Court with six Republican-appointed justices takes up a case about Mississippi’s ban on abortion after 15 weeks. If the conservative justices think that Roe should go, they could hardly have found a more propitious time from the perspective of the pro-life movement.
The backlash theory is based on polls that find broad public support for Roe and opposition to overturning it. They also generally find opposition to a total ban on abortion.
But public opinion on abortion is complicated. Other polls find that most people also hold views that are incompatible with Roe, such as thinking that abortion should be allowed only in a few circumstances and not in the second trimester. A lot of people are ambivalent about abortion and not well versed in the particulars of Roe and the implications of overturning it. Many Americans – roughly two-thirds, by one estimate – are under the impression that overturning Roe would ban all abortion nationwide.
It wouldn’t. If the court overturns Roe, its most likely ruling is that the Constitution lets legislatures set abortion policy. No justice has ever written an opinion urging the court to rule that abortion must be illegal.
If a pro-life Republican were president when Roe was overturned, it would be easier for supporters of abortion to capitalize on public worry that abortion policy was about to shift too far, too fast. But we instead have a Democratic president who is committed to legal abortion. If the court overturned Roe, President Joe Biden would urge Congress, also led by Democrats who favor legal abortion, to pass a law protecting it. That prominent pushback would make it harder to sustain the fiction that back-alley abortions were about to become commonplace.
Even better for pro-lifers, it’s unlikely that Democrats could pass an abortion-protecting law. A bill to block states from restricting abortion would be subject to the filibuster. There are more than enough opponents of abortion in the Senate to sustain one. A lot of Democrats would be willing to end the filibuster to pass such a bill. But, to succeed, they would need the vote of Sen. Joe Manchin, the West Virginia Democrat who has said he favors keeping the filibuster and also calls himself pro-life.
We could expect many liberals to call for packing the Supreme Court with new justices who would reinstate Roe. But this gambit would have even less prospect of success. Democrats would have to expand their majority in the Senate and hold the House of Representatives in the 2022 midterm elections, an accomplishment against the historical odds, to start to have a chance.
With Washington deadlocked, much of the debate over abortion policy would move to the states. Some states would move to ban nearly all abortions, others to ban most of them, still others to ban them after the first trimester. Pro-lifers would not win all of these fights. But, since the court’s decisions in Roe and other cases have effectively required that abortion be legal at any stage of pregnancy, they will have plenty of room to make progress.
When conservative states have acted on legislation about controversial social issues in recent years, they have often faced a buzz saw of negative press and corporate pressure. Think of Indiana’s attempt to protect religious freedom in 2015, which ended with the state’s then-governor Mike Pence backing down. In the aftermath of a decision overturning Roe, however, several states would be moving against abortion, with support from local voters. No state would have to stand alone against a national campaign of intimidation.
All of these features of a possible post-Roe landscape – the complexity of public opinion, the closely divided national government, the dynamics of federalism – would tend to defuse any sense that the Supreme Court had dropped a bomb. They would also work against complacency on the part of pro-life citizens, who have usually been more likely to vote based on their views on abortion than their opponents have.
State-by-state legislative battles would surely stretch for many years, with reversals and strife guaranteed. But they would be likely to leave more Americans living under abortion laws they favor: Liberal states would continue to have laws permitting abortion for any reason, while conservative ones would provide greater protections for unborn children. The struggle could also normalize a new status quo of legislative back-and-forth, making pro-life policy proposals seem less threatening and radical to voters in the middle.
The result would not be that pro-lifers realized their dream of an America where all unborn children are protected in law and welcomed in life. It would be a new set of debates. But it would still be a victory: The government would no longer be telling pro-lifers that our deepest beliefs about human dignity are at odds with our fundamental law.
The justices ought to reverse Roe because it’s the right call on the legal merits. They should not flinch in anticipation of a political backlash, especially since it might turn out to be less fearsome than predicted.
Ramesh Ponnuru is a Bloomberg Opinion columnist, a senior editor at National Review and a visiting fellow at the American Enterprise Institute.