In the current issue of the Atlantic Monthly, Jeffrey Rosen has an interesting forecast (subscriber-only) of the political consequences of a decision by the Supreme Court to overturn Roe v. Wade and restore abortion policy to the political processes, where the Constitution leaves it. A few comments:
1. I don’t think that anyone would dispute (or should be surprised) that an end to the Court’s 30+-year usurpation of politics on the abortion question would lead to a period in which abortion policy is front and center in the nation’s politics. I see little reason, however, to believe that that period would be as extended or as dramatic as Rosen posits. (The subtitle of his article, for which he might not be responsible, seems particularly hyperbolic: The overturning of Roe, it says, would “set off tectonic shifts in the American political landscape not seen since the civil-rights movement—or perhaps even the Civil War.”) I also think that genuine debate would be healthy and would, more than anything, help to defuse in the long term the tensions that surround the abortion issue.
2. Might the overturning of Roe hurt Republicans? Of course, it might, at least in the short term. So what? A perception among social conservatives that careerist Republican politicians would favor their own jobs over fixing the massive error of Roe would hurt Republicans even more. Plus, I think that Rosen dramatically underestimates the ability of politicians to adapt to a post-Roe environment. Indeed, if it were so clear that an overturning of Roe would hurt Republicans, why aren’t smart Democrats seeking it?
3. Rosen concludes near the end: “If the Court remains sensitive to the people’s constitutional views, as it has been for most of its history, it may be more than a little hesitant to overturn the core of Roe in the first place.” Let’s set aside for now that I don’t understand how Rosen distinguishes “the people’s constitutional views” from their policy views. Earlier in his article, Rosen explains that national Gallup polls over the last 30 years show that only 25% of the public supports legal abortion in the second trimester. Yet the supposed “core of Roe,” which the 1992 ruling in Planned Parenthood v. Casey purported to reaffirm, forbids a general bar on abortion during the second trimester. So the only way for the Court to remain “sensitive to [what Rosen calls] the people’s constitutional views” is to at least cut back dramatically on Roe. Far better to do the right thing as a matter of the Constitution, overturn Roe outright, and trust the political processes to handle the issue.