The Corner

Law & the Courts

If Roe Is Ever Overturned

It’s too early to say whether Neil Gorsuch would vote to overturn Roe v. Wade, but the assumption that he would is plausible, and the Senate seems likely to confirm his nomination to the Supreme Court. If Anthony Kennedy then retired in the next couple of years (he’s thinking about it, according to rumors), he could be succeeded by an anti-Roe justice who would join Gorsuch, John Roberts, Clarence Thomas, and Samuel Alito to form, presumably, a 5–4 majority for overturning the landmark abortion decision. States would then become free to expand their legal protections for unborn children, but they wouldn’t have to.

It would be a mistake to think that overturning Roe would be a home run for the pro-life movement. It would be some runners on base. It’s not guaranteed that pro-lifers would drive them in.

Some states could end up restricting abortion earlier in the second trimester, which begins at the 13th week of pregnancy. Roe already lets them restrict abortion after fetal viability, which is now usually defined as beginning at week 23 or 24. Some states draw the line earlier, at week 20. More than 40 states currently prohibit abortion at some point in the second or third trimester, though they make exceptions for endangerment to the mother’s life or health.

In a post-Roe world, access to the procedure in the first trimester, when about 90 percent of abortions are performed, could also be prohibited in theory, but the chances that would happen appear remote even in conservative states, unless public opinion shifted dramatically. Polls consistently show large majorities nationwide not only opposing — by about 70 to 30 percent, according to Pew and Quinnipiac — any effort to overturn Roe but also supporting the legality of abortion in all or most circumstances.

A couple of data points for pro-lifers to bear in mind as they plan for the possibility of a post-Roe future somewhere down the line: In 2014, voters in North Dakota, a red state, soundly defeated, 64 to 36 percent, a proposal to amend the state constitution to define human life as beginning at conception, and last fall in Poland, a Catholic and socially conservative country, the parliament rejected, 352 to 58, a bill that would have banned abortion except to save the life of the mother. Obviously, Europeans would not vote on state abortion laws in America, but their attitudes are worth noting because they are close to those that have crystallized here, illustrating how firmly established across the entire West is the consensus that abortion up to about three months should be generally available.

If Roe goes, pro-lifers will find new openings to advance their cause state by state, but they lack the public support to capitalize on those opportunities beyond a limited scope. Besides restricting late-term abortion, they might add or strengthen parental-notification laws and work to prevent taxpayer funding of abortion, two positions that enjoy broad support. They will work with public sentiment such as it is. It’s not what they would like it to be.

They should be mindful that they need to change the culture if their idea of justice for unborn children is ever to become the norm in a post-Roe world. Political activism by itself isn’t enough. State legislators are voted in and out by constituents who recoil from pro-life as well as pro-choice rhetoric that they perceive as militant, uncompromising, or too pure. Pro-lifers might push abortion-related policies that are half a step ahead of the larger public, encouraging it to stretch a little and catch up with them, but mostly politics is downstream from culture, not vice versa.

I elaborate a bit at The Human Life Review.