Michelle Goldberg has written something about the leaked SCOTUS decision. Her take isn’t really focused on the decision itself but on what comes next if the final decision looks like the leaked draft.
As Goldberg sees it, Roe didn’t become the most contentious issue in our national politics because it imposed a legally and ethically dubious one-size-fits-all framework on people who fundamentally disagreed with its reasoning and conclusions. Goldberg sees Roe as a kind of legal Pax Romana bringing stability to the US over the past 50 years, a stability which is about to end with terrible consequences for America.
…the demise of Roe will exacerbate America’s antagonisms, creating more furious legal rifts between states than we’ve seen in modern times.
“If you think it’s polarized now, you haven’t seen anything yet,” said Mary Ziegler, a visiting professor at Harvard Law School and author of the forthcoming book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”
Very soon, if the Supreme Court really discards Roe and Planned Parenthood v. Casey, the 1992 decision partly upholding it, we will have two wildly different abortion regimes in this country. About half of states are expected to mostly prohibit abortion; according to the Guttmacher Institute, in 11 states there won’t even be exemptions for rape and incest. A bill moving through the Louisiana Legislature would allow prosecutors to charge those having abortions with homicide.
Blue states, meanwhile, are setting themselves as abortion sanctuaries. Oregon lawmakers recently passed a bill to create a $15 million fund to help cover abortion costs, including for those traveling to the state for the procedure. Something similar is in the works in California. Abortion clinics in Illinois, bordered by several states where abortion is likely to be made illegal, are preparing for a huge influx of patients.
She’s certainly correct that there will be two opposing sides leaning in to this divide. We know that because there have been two sides to this debate since Roe was decided. Just to make the point crystal clear, here’s a bit of the editorial which Christianity Today published in February 1973:
In a sweeping decision January 22, the United States Supreme Court overthrew the abortion statutes of Texas, indeed, of all the states that protect the right of an unborn infant to life before, at the earliest, the seventh month of pregnancy. The Court explicitly allows states to create some safeguards for unborn infants regarded as “viable,” but in view of the present decision, it appears doubtful that unborn infants now enjoy any protection prior to the instant of birth anywhere in the United States. Until new state laws acceptable to the Court are passed—at best a long-drawn-out process—it would appear impossible to punish abortions performed at any stage.
This decision runs counter not merely to the moral teachings of Christianity through the ages but also to the moral sense of the American people, as expressed in the now vacated abortion laws of almost all states, including 1972 laws in Massachusetts, New York, and Pennsylvania, and recently clearly reaffirmed by state-wide referendums in two states (Michigan and North Dakota). We would not normally expect the Court to consider the teachings of Christianity and paganism before rendering a decision on the constitutionality of a law, but in this case it has chosen to do so, and the results are enlightening: it has clearly decided for paganism, and against Christianity, and this in disregard even of democratic sentiment, which in this case appears to follow Christian tradition and to reject permissive abortion legislation…
Pleading “the established medical fact” that “until the end of the first trimester, mortality in abortion [of course the reference is to maternal mortality—fetal mortality is 100 per cent] is less than that in normal childbirth [nine maternal deaths per 100,000 abortions vs. twenty-five per 100,000 live births, a differential of 0.016 per cent, of course not counting the 100,000 fetal mortalities]” (ibid., X), the Court decreed that a state may not regulate abortion at all during the first three months, and during the second, only to protect the health of the mother. After “viability,” defined as “about six months,” when the fetus “presumably has the capability of meaningful life outside the mother’s womb,” then, “if the State is interested in protecting fetal life … it may go so far [emphasis added: since abortion is 100 per cent fatal to the fetus, it is hard to see the value of “protection” that goes less far] as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother” (ibid.). Since health is explicitly defined to include “mental health,” a very flexible concept, this concession to the protection of the fetus from seven to nine months will, in practice, mean little…
In view of this, Justice Rehnquist’s dissenting observation that the Court is engaging in “judicial legislation” may seem almost insignificant. Nevertheless, we must ask what remains of the democratic process and the principle of local initiative when not only long-standing older laws but the most recent state laws and even the will of the people expressed in state-wide referendums are swept from the board in a single Court ruling, when the people and their representatives are prohibited forever—or at least until the Constitution is amended—from implementing a higher regard for the life of the unborn than that exhibited by seven supreme judges.
People objected to Roe from the day it was passed and they have continued to voice their objections to it ever since. The following year on the first anniversary of the Roe decision, the March for life was started. The initial March had several thousands attendees but by 1977 it was making news:
Carrying signs and banners that said “Abortion Is Murder,” “Pick on Somebody Your Own Size” and “Stop Abortion: It’s Capital Punishment for the Innocent,” about 40,000 people braved a cold, bitter wind yesterday afternoon to march up Pennsylvania Avenue to protest the legalization of abortion.
For the past four years the antiabortion forces have staged their march here on the anniversary of the Supreme Court decision legalizing abortion on demand. Yesterday, as in years past, they pledged themselves to work to end federal funding of abortions for the poor and to seek the passage of a constitutional amendment prohibiting abortion…
The estimate of 40,000 marchers was made by D.C. police.March leaders told those participating that there were “well in excess of 100,000” marchers.
The point of all of this history is that, contrary to what Goldberg claims, there was immediate and consistent opposition to Roe. It was always a polarizing decision it’s just that people on Goldberg’s side of the argument felt comfortable ignoring everyone on the other side because Roe meant those who opposed the ruling had no power to do anything about it. Legally speaking, pro-lifers were told that the laws they had created for themselves were null and void and that their own views or moral intuitions about abortion were irrelevant. But over time those people fought back, achieved power in the states and in the courts and now we appear to be on the verge of winning. We’re finally going to have this long-delayed debate play out, legally and in other ways, in a world where both sides are allowed to have a say.
Yes, there will be furious legal activity between the states as some seek to end abortion entirely and others seek to eliminate all limits on it. Republicans may indeed try to pass a national ban on abortion just as Democrats are right now trying to codify Roe with no exceptions on abortion up to birth. Maybe the law will see-saw back and forth wildly for a decades as both sides momentarily get their way. I don’t see that as ideal but it may be unavoidable. Meanwhile, claims that returning this to the states returns America to the dark ages seem excessive. Have you heard that France recently liberalized it’s abortion laws? It’s true:
Over the past 10 days, France made two notable advances for reproductive rights. On February 23, parliament voted to extend the legal timeframe for abortion under any circumstances from the twelfth to the fourteenth week of pregnancy. On February 19, the government eased access to medication abortion as an alternative to more invasive surgical procedures.
France’s 12-week time limit for abortion on request had forced thousands of women annually to travel outside of France to procure legal abortions. Its new 14-week limit mirrors that of Spain, while other European Union countries go further: abortion for any reason is legal in Sweden up to 18 weeks and in the Netherlands up to 24 weeks.
France’s new law ends legal abortion at 14 weeks, one week earlier than the Mississippi law (15 weeks) which prompted the Supreme Court case we’re all talking about. In Sweden, the country Bernie Sanders sees as a shining beacon of social democracy, the limit is 18 weeks. So when you hear panicked liberals talking about the end of women’s rights if Roe is overturned, keep in mind that what they’re fighting in this particular instance is actually just France and Sweden circa 2022.
It may be true that this fight will get worse before it gets better but eventually America will probably get tired of the fighting and reach some sort of actual compromise on this issue. Maybe that will be a national compromise that looks more like France or a state by state compromise where some laws are very restrictive and others are very progressive. Either way it will be preferable to Roe.