April 26, 2006, 11:51 a.m.
Corner Extra: Life After Roe

A Conversation, Continued [Ramesh Ponnuru]

In The New Republic the other day, I argued that, contrary to conventional wisdom, it would probably be good for Republicans if Roe v. Wade were overturned. (I also make that argument in my new book, The Party of Death.) I've responded to Cass Sunstein's criticism of my argument; now I'll respond to a few more.

Reihan Salam challenges a point where I agree with the conventional wisdom: that the practical effect of Roe's overturning would be the return of the issue to state legislatures. He cites William Baude's argument that leaving the issue to the states would lead to legal chaos. Pro-life states would try to keep pregnant women from leaving to get abortions elsewhere, pro-choice states would "respond in kind," federal courts would have to sort it all out, and so we would have to have a "federal resolution" to the issue. Like Jonathan Adler, I just find this scenario implausible. I don't see why federal courts couldn't settle the conflicts between states' laws without setting a substantive national abortion policy.

Reader J.G., who seems to be pro-choice, sends a few thoughtful e-mails that make two points worth addressing. First, he argues that I may be overestimating how hard Democrats would fight to protect second-trimester and third-trimester abortions. If they give up that ground, they will be better off politically than I suggest. He may be right about how the Democrats would act post-Roe; I hope he is. But any such decision by the Democrats would demoralize NARAL, Emily's List, Planned Parenthood, and the rest, wouldn't it? It wouldn't be a costless move.

Second, J.G. argues that I overestimate how pro-life the public is. He points to 2006 Fox News polls in which 62-63 percent of Americans say that women should be able to get abortions for mental-health reasons. Now presumably that number would be lower if the question were worded in a way that alluded to the manipulability and plasticity of a mental-health standard.

But that's sort of the point. Polls that ask whether abortion should be "between a woman and her doctor" generally get at least a moderately positive response. (Again, presumably the wording "between a woman and the abortionist she just met" would not.) That isn't a meaningless result; it's a result that points to a significant pro-choice strength, and a real obstacle to pro-lifers, in public opinion.

I pointed out that in many polls, a small majority of Americans say that they think that abortion should be banned with exceptions for life-threatening pregnancies, rape, and incest. Does that mean that this majority would really favor a law that made no exceptions for, say, severe fetal abnormality? Or for pregnancies that threatened, say, the mother's physical health? Clearly not. Some of the people who say they would favor a law with only the life-rape-incest exceptions were just not thinking about those scenarios.

But the fact that small majorities say they want a policy that would ban almost all abortions isn't meaningless, either. It doesn't mean that in a post-Roe world we could expect such laws to be passed in most states. But it does mean that you could expect tighter abortion laws than you'd expect if you just looked at the polls that give cheer to pro-choicers. It does mean that pro-choicers have no reason for complacency about what a post-Roe America would look like. Which is all I was trying to argue.

Joseph Bottum, finally, wonders whether there's any point to speculating about the political consequences of overturning Roe. "Surely no one is persuaded to be for or against abortion by Sunstein's claim that it will hurt the Republicans — or by Ponnuru's answer that it won't." That's right. But the claim that overturning Roe would hurt Republicans is connected to the claim that opposition to abortion is unpopular. To the extent pro-life politicians believe that claim, they will be more timid in their opposition than they should be. To the extent politicians with no particular convictions on the issue believe it, they will be less likely to take the pro-life side in the first place. (If enough Republican politicians say that they want Roe to stay, they may even affect the votes of some justices. I can't think of any current justices inclined to vote against Roe who would be moved, but I do think that signals from politicians about what types of decisions would be within the political mainstream have affected the outcome of some cases.)

And to the extent that rank-and-file pro-lifers believe that even after Roe, they have no chance of succeeding in protecting the unborn because the public is against them, they will have lower morale than they should. I close my book by speculating about life after Roe for two reasons. I wanted to make the case that the political system can handle abortion without exploding. We don't need the courts to save us from our own conflicting passions. Allowing abortion policy to be set democratically would, indeed, have salutary political effects. (I haven't gone into this part of my conclusion online; you'll have to read the book.) And I wanted to provide pro-lifers with a rational basis for hope.

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