After Roe

A s the arguments in Dobbs v. Jackson Women’s Health Organization begin today at the Supreme Court, it’s worth remembering that this long, generational march of the pro-life movement is only a march to the starting line for the real race. The issue before the Court is not the morality of abortion. All that is at issue is whether the people, through their state legislatures, are able to limit and regulate the practice of abortion — whether abortion is a fundamental constitutional right or a matter for self-governing people to determine democratically. A huge, against-all-odds victory that vitiates the holding of Roe v. Wade and Planned Parenthood v. Casey would only mean the restoration of American self-governance on the issue of abortion. The legal movement to restore constitutional rule on the issue is only the prelude to a true democratic pro-life movement.

If Roe is overturned or weakened to the point where state legislatures get active, you will see blue states try to re-create in their own territories the legal free-for-all that existed these last five decades. Some red states will restrict abortion to the point where very few abortion providers remain in their states. And each of these restrictions will be probed for moral coherence.

Overall, American abortion law will — in aggregate — become more like European abortion law, with a variety of restrictions kicking in after the first trimester. And like European abortion law, American abortion law will likely develop in a way that seeks to satisfy the contrary and contradictory impulses of the American people; the laws will often lack moral coherence.

Pro-lifers should prepare themselves for surprises. The incidence of surgical abortion has been in decline for a long time. Part of this trend is that younger people are having less sex altogether. Another part is the increased use of effective contraception. Another is the increase of state laws restricting abortion.

But it’s also true that the decline of surgical abortion is driven, to a disputed degree, by the rise of chemical abortions, “emergency contraception,” and other practices that the pro-choice Guttmacher Institute calls “self-managed” abortion. Already, there is a faint strain of class divergence. Women of means, or privilege, and with access to social resources, opt for early chemical abortions or forms of emergency contraception, which most pro-lifers argue are really abortifacients trading under another name. Poorer women, and those with more chaotic lives, end their pregnancies surgically. By making it easier to regulate and prohibit surgical abortion, pro-lifers will likely hasten the trend of abortion’s becoming an act between a woman and a faceless online drugstore.

Most consequentially, however, a victory in the Court will bring pro-lifers to a much more difficult challenge than uprooting a bad Supreme Court decision. I’ve written before that the largest obstacle for pro-life activism is that people in modernity rebel against what they perceive as unchosen obligations.

And this is an insidious problem for pro-lifers. Even if pro-lifers could, through technology and legal reform, ease and eliminate all the dangers of pregnancy, all the hassle of child-bearing and legal adoption, there would still be demand for abortion. Because legal abortion extinguishes all claims that a child has on his or her parents in this world. Abortion promises (falsely) to eliminate the possibility of regret. Or the knowledge that one’s son or daughter is out there somewhere, wondering about their origins.

If the pro-life movement succeeds in the Court, suddenly it faces its real problem, of which legal abortion is the result. The pro-life movement will be facing the sexual revolution itself. And it will suddenly be in the position where it must argue that sexual liberation is simply impossible. The partisans of liberation will try to make the case for long-term contraception, perhaps even seeking to make it mandatory as a public-health issue. But there simply is no set of social arrangements, no taboos that can be eliminated or chemicals that can be ingested, that perfectly guarantee humans the ability to separate the erotic impulse from sexual consequence. This reality gives our erotic longings real moral and even political consequence.

Abortion has become our culture’s attempt to make the impossible possible. It is used to make abandonment look like a change of mind, to make death look like health care. It’s the awful, bloody thing we’ve done to reconcile our desires with our circumstances and limitations. Overcoming it will require more than this courtroom drama.