Reversing Roe v. Wade Won’t Help Republicans

Posted on July 6th, 2018 by Elizabeth Boylan

Reversing Roe v. Wade Won’t Help Republicans

Overturning the landmark 1973 ruling, as seems more and more likely, might take away a powerful tool for energizing conservative voters — and it might motivate liberal ones.

by Carol Sanger
Originally Published in The New York Times, July 5, 2018

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Overturning Roe? Watch what you wish for, Republicans.

The imagined implications of Justice Anthony Kennedy’s resignation for the future of legal abortion have brought visions of long-awaited sugar plums to anti-abortion politicians and activists. In 2016, candidate Trump pledged to appoint anti-abortion justices to the Supreme Court, saying that two or three such appointments would mean the end of Roe v. WadeNext week, we get the name of President Trump’s second pick. Trump’s anti-abortion supporters — including his evangelical advisers, the National Right to Life Committee, Americans United for Life, the Susan B. Anthony List, and most significantly,the Republican Party — are now confident that it is just a matter of time until Roe is overturned.

Yet the celebration around Roe’s demise seems premature, if not downright dangerous for the Republican Party. For starters, there is muted recognition that even under a Supreme Court populated by conservative Trump appointees, Roe v. Wade may not be overturned. This is because judges of all leanings are guided not only by their views on specific issues but also by foundational jurisprudential principles. These include stare decisis, which holds that unless there is a very strong reason for overturning a prior decision, that decision should stand as the rule for similar cases in the future. Early in our history, Americans rejected the idea of courts swaying to whatever political breeze blew in at election time.Citizens should be able to rely on the durability of constitutional law no matter who is in office.

Indeed, the last big challenge to Roe was decided on the basis of stare decisis. In 1992, conservative-leaning justices refused to overturn Roe in a case called Planned Parenthood v. Casey. They explained that although they might have voted against Roe had they been on the Court in 1973, they would not vote to overturn it 20 years later. They found that nothing in the law had changed in the interim to justify overturning Roe. In fact, the court held quite the opposite, noting that an entire generation of “people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” This kind of social reliance might be even more weighty two generations after Roe.

But let’s assume, as both the left and the right seem to do, that of the nine justices, five of them can see their way clear to overturning Roe. How could that be bad news for Republicans? Since the 1980s, when Ronald Reagan brought the anti-abortion movement into the Republican tent, a coalition of Republicans and evangelicals has focused on abortion generally and Roe in particular, as the super fuel that energizes the right. The ongoing Republican commitment to eliminating legal abortion by overturning Roe was evident in the 2016 election. Then, 70 percent of conservative voters said that the issue of Supreme Court appointments was very important to how they planned to vote, more than any other group. Small wonder then that President Trump said in a speech before the Susan B. Anthony List in May, “Now, for the first time since Roe v. Wade, America has a pro-life president, a pro-life vice-president, a pro-life House of Representatives, and 25 pro-life Republican state capitols.” From this perspective, what’s not to like about Roe’s reversal?

Counterintuitively perhaps, there are quite a few things. Getting rid of Roe would deprive the far right of one of its most crowd-pleasing, rabble-rousing, go-to issues. After all, there is plenty to dislikenabout abortion, if one is so inclined: the assumed sexual promiscuity of careless women and disobedient girls; the view that abortion is murder; and the power Roe gave to women by liberating them from their traditional place in the home. Roe bashing is a powerful source of solidarity; its absence would deprive Republican politicians and Fox News of the issue that stands at the ready to roil the political pot.

This is especially true now that fewer targets are available for Republican moral outrage.It used to be that you could always count on anti-abortion and anti-gay hostilities to stoke the base.But gay people and certain gay rights have become more familiar.There is now a right to marry the adult partner of your choosing. To be sure, there has been a presidential full-court press aimed at replacing gays with immigrants as the new subverters of the American way.Yet the last few weeks have revealed that mistreatment of immigrant families can cause popular, religious and legislative blowback, including from conservatives.

Claims of moral rectitude are not the only thing lost if Roe is overturned. If Roe is reversed, the question of whether abortion should be legal or whether it should be a crime reverts to the states, and this could produce additional concerns for the right. If state legislatures decided not to criminalize abortion, frenzied Republican accusations of “judicial activism” — the liberal judicial overreach Roe is claimed to symbolize — would ring completely hollow.

There is also important evidence that citizens themselves, even in red states, are not entirely sure they want abortion to be a crime. A recent Kaiser Family Foundation legislative tracking poll shows that two-thirds of Americans do not want Roe reversed. In addition, the last several red state referendums asserting that legally protected personhood begins at conception failed. Many states couldn’t get enough signatures to get such proposals on the ballot. It turns out that in the privacy of the voting booth, many citizens have second thoughts about whether they want rights for embryos embedded in their state constitution. Ordinary people — not anti-abortion politicians — may have a more intimate understanding of what is at stake for them in banning abortion absolutely. Women of all parties and religions have abortions or want the right to one should they be faced with the calamity of an unwanted pregnancy. Ask the women and men of Ireland, a staunchly Catholic country, why they voted for a referendum removing Ireland’s constitutional ban on abortion.

The prospect of criminal abortion in the United States may also light a fire under younger generations of Americans who, in consequence of what has been called “the luxury of legality,” have become rather complacent about reproductive freedoms. For over 40 years, abortion and contraception have been legally available, so, like, that can’t change, right?Women of reproductive age may be about to discover the answer might be yes — and this could energize them to elect more Democrats who will support reproductive rights.

Justice Kennedy’s resignation has given President Trump the extra Supreme Court appointment he has so craved, and he means to make the most of it. He has already said that his nominee will be young enough to serve for some 40 years. Jubilation now reigns among those who want to go back to the good old bad days of illegal abortion — marked as they were by shame, misery and a massive class divide regarding access to abortion. Republican strategists may not wholly appreciate Mr. Trump’s gift of Roe’s reversal. And there is, of course, the possibility that the justices may decide to follow the path of two prior courts and leave the core legality of reproductive rights alone.

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Carol Sanger, the Barbara Aronstein Black Professor of Law at Columbia Law School, is the author of “About Abortion: Terminating Pregnancy in 21st Century America.”

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