Are we close to the end of Roe v Wade and if so what happens next?

AP Photo/Alex Brandon

I’m intentionally opening a big can of worms here which I know I can’t do justice in 1,500 words or even twice that, but there’s an interesting argument going on about what happens to Roe v Wade now that there is a 6-3 conservative majority on the Supreme Court.

What kicked this off was a piece published by the magazine First Things in which Law Professor John Finnis argued it was time for pro-lifers to push for a fetal personhood argument based in the 14th Amendment, i.e. make abortion unconstitutional. That’s different from the argument from the one that many pro-lifers have made over the years which has been more along the lines of we should overturn Roe v. Wade so we can return the argument to the states.

This new argument raises a bunch of interesting questions, staring with why move the goalposts when the original goal (overturning Roe) seems within reach? Earlier this month, Ross Douthat wrote a column at the NY Times suggesting some possible answers:

An apparent hour of victory seems like an odd moment to fall to Twitter wrangling over a constitutional claim that most conservative jurists, from Robert Bork to Antonin Scalia, have consistently rejected.

But abortion foes actually have good reason to feel unsettled and uncertain rather than triumphant. First, there is the strong possibility that the 6-to-3 conservative court does not have a majority of justices who particularly want to apply their principles to something as fraught as abortion, as opposed to the comforting blandness of administrative law. Between the popularity of Roe in polling and the fear of liberal backlash and potential court-packing, some combination of John Roberts, Neil Gorsuch and Brett Kavanaugh may decide to follow the rule of institutional self-protection rather than their principles, or find ways to make only the smallest-possible edits to the court’s existing abortion jurisprudence…

The movement also has to be aware that even if its long-running legal strategy is about to succeed, its strategies and prospects in a post-Roe world are uncertain at best…

In other words, it’s still not clear Roe is going to be overturned so part of this may just be nerves. But if pro-lifers do get what they want at the Supreme Court, then Douthat argues they will have to fight to make that change a lasting one by creating a culture that supports the kids who otherwise would have been aborted.

A victory at the court should likewise widen the pro-life imagination well beyond Republican politics-as-usual, toward an all-options-on-the-table vision of how public policy could make an abortion ban feasible, popular, enduring.

He suggests that might mean endorsing something like Mitt Romney’s plan for a family benefit. That’s just one example but the idea is that, if pro-lifers win, they ought to do something to deal with the consequences of the decision in a constructive way.

The alternative view was aired in a response piece written by Michelle Goldberg. Goldberg basically believes that the desire to regulate abortion has little to do with protecting and supporting life and more to do with controlling women and condemning abortion. Her response is here. But in addition to the rival pieces, they also got together for a podcast to discuss the issue. There are various ways to listen but there’s also a full transcript. Here’s a highlight:

Goldberg: I mean, obviously, in my opinion, the one thing you can do to really curtail abortion is increase access to birth control. But even if you’re not willing to go down that road, there are other things that you can do now with Roe v. Wade still being, however weakened, the law of the land. There are things you can do to make it easier for somebody with an unplanned pregnancy to bring it to term. But aside from Ross and sort of a few other quirky figures, that’s not a priority. And I think that there’s a fundamental question to me — well, it’s not even a question because I know what I think about it— of, is the anti-abortion movement interested in stopping abortions or banning abortions? Or is it interested in reducing the number of abortions or making abortions illegal? Because those two things are different questions. One is about the actual number of abortions in society. The other is about a society’s values and hierarchy and structure. Something that I’ve seen reporting on this issue in Latin American countries where abortion is either illegal or severely restricted, is that it’s pretty easy to find out where to get an illegal abortion. It’s the kind of thing that I could roll up and figure out in a week or two. So presumably, the police could figure it out, too. You see women getting jailed for dubious miscarriages. You don’t see a lot of — at least I didn’t see when I was reporting on this at the time — raids on the places where people were actually getting abortions. And you certainly didn’t see a reduction in abortion rates. Latin America has some of the highest abortion rates in the world. And so it seemed to me that what was important to conservatives in those societies was not that there’d be less abortions, but that there would be more moral condemnation of abortion. That there would be kind of a society-wide statement against female bodily autonomy. And I suspect that the same is true here. I suspect that for a lot of members in the anti-abortion movement, given a choice between a regime in which abortion is criminalized but still prevalent, and a regime in which abortion is legal but less prevalent, they would take the one where it’s criminalized.

Douthat: So I completely disagree. A few points. One, I think the relevant case studies for the effect of abortion laws on abortion rights for a country like the US are, in fact, the several states of the American union and maybe arguably countries in Western and Central Europe that are somewhat our peers in terms of development, women’s educational opportunities, healthcare and so on. And if you look across those states and societies, there’s a imperfect but pretty clear correlation between higher abortion rates and laxer abortion laws and lower abortion rates and more restrictive abortion laws. The states in the U.S. that have, to the extent it’s possible under Roe, tighter abortion laws and regulations that mean that there are fewer abortion clinics in the states, have lower abortion rates. In Europe, the highest abortion rates are in countries that have liberal abortion laws. Places like more Catholic regions, but also places in Germany that have either second trimester restrictions, waiting periods, counseling, various impediments, have lower abortion rates. So the idea that if you have anti-abortion laws, it doesn’t affect abortion rates, is, I think, fundamentally wrong. I don’t think there is a tension between saying, do you care about the abortion rate, or do you care about the abortion law? Abortion law has a profound impact on abortion rates. And it also just has an impact— and I guess, here, I agree with some of the sort of common good conservatives. The law is a kind of moral teacher. It establishes a kind of public perception of what’s right and wrong. And that, too, I think affects the choices that people are willing to make. Now I completely agree with Michelle. And as she kindly acknowledged, I am part of the small faction of conservatives that thinks that government spending and government policy around families is a really important area of public policy where conservatives have, with some exceptions, failed in their goals. At the same time, the actual pro-life movement, which is not the same thing as the Republican Party, right? It’s a sort of group within the Republican Party that doesn’t have actual control over the Republican Party in all kinds of ways. The actual pro-life movement has spent large amounts of time and energy through all kinds of charitable organizations and Catholic religious orders and crisis pregnancy centers and so on, trying to actually help mothers who want to have babies. I think this is insufficient as public policy that private charity is not enough. But the idea that the pro-life movement mostly consists of people sitting around, saying, we really need to restore status hierarchies and keep women in their place —

Goldberg: I don’t think they’re saying that. I think it’s implicit.

Douthat: It just doesn’t map onto actual pro-life activism.

It’s an interesting debate because both sides really can point to test cases that seem to support their views. My own view is that overturning Roe would be a good step because it will end the Roe framework and might allow more reasonable compromises like what we see in most of Europe, where abortion is often restricted after 12-16 weeks.

But it’s fair to say that most of those European states also have pretty generous social safety nets. So it does raise a hypothetical question about whether those things are tied together in the public’s mind. Is a bigger safety net the public cost of more restrictive abortion laws. Put another way, if you told pro-lifers they could have their win in the court and broad acceptance in the nation but only if they would endorse something like the Romney family benefit plan to practically help all the new mothers and children coming into the world, would they take that bargain? And if not, why not?

I warned you this was a big can of worms. There’s so much more to say about each element of this but I’ll have to come back to it another day.