By the late 1980s, President Ronald Reagan had made three appointments to the Supreme Court. In 1989, the Court upheld restrictions on abortion passed by the Missouri legislature. Then President George H. W. Bush made two additional appointments. When the Court took up another abortion case during the term ending in 1992, many people expected that it would overturn Roe v. Wade.
It didn’t. Instead, three of the justices appointed by Reagan and Bush — Anthony Kennedy, Sandra Day O’Connor, and David Souter — wrote an opinion in Planned Parenthood v. Casey that reaffirmed Roe while also modifying it.
Pro-lifers were on the defensive in the run-up to the decision. Public support for legal abortion was rising. Previously pro-life politicians declared that they had undergone a change of heart. Pundits explained that if Roe was overturned, a sleeping pro-choice majority would awaken. Republican politicians would be placed in an impossible position. Their pro-life supporters would expect real action against abortion with the Supreme Court out of the way, but the Republicans could not deliver on those promises without a public backlash.
That political backdrop, it has often been suggested, played a role in the outcome of Casey.
President Donald Trump has now nominated Brett Kavanaugh to replace Justice Kennedy, the only member of the plurality still on the Court, and so the future of Roe is again being debated. Once again it is being suggested that overturning Roe would cause a public backlash against pro-life Republicans. A large fraction of stories about the nomination are noting that polls show two-to-one support for Roe. Will one or more of the Republican-appointed justices again flinch?
Assuming all of the Democratic appointees remain solidly behind Roe, overturning it would require the support of all of the Republican ones: Justice Clarence Thomas, the only justice who has called for overturning it; Chief Justice John Roberts and Justice Samuel Alito, who have voted to uphold some legal protections for unborn children but not written or joined opinions expressing a view about Roe; Justice Neil Gorsuch, President Donald Trump’s previous appointee; and Brett Kavanaugh, assuming Senate confirmation.
But the political context is better for pro-lifers now than it was in the late 1980s, and the backlash theory has always been overblown. The justices should not let a partisan political calculation affect their performance of their constitutional duties even if that calculation is right. This one, however, may also be wrong.
In the late 1980s and early 1990s, public opinion was clearly moving in a pro-choice direction. In 1985 as in 1975, 21 percent of Americans polled told Gallup that abortion should be legal under any circumstances. By 1988, that number had ticked up to 24; by 1989, to 29. In early 1992 — the year the Court handed down Casey — it hit 31. Gallup’s latest poll shows 29 percent of Americans favor legal abortion under any circumstances. There has been no recent upward trend.
Gallup started regularly asking respondents if they consider themselves pro-choice or pro-life in 1995. It found then that 56 percent answered pro-choice and only 33 percent pro-life. Those numbers evened up afterward, probably because of advances in sonogram technology, the rising acceptance of illegitimacy, the campaign against partial-birth abortion, and the decline in anti-abortion violence. There has been no sustained trend in either direction in recent years. The sides were tied at 47 percent in 2011, and are tied again at 48 this year.
Pro-lifers should not dismiss the favorable polling for Roe, which tells us something real about public opinion. But other polling should also be kept in mind. Gallup has long asked whether abortion should be legal in no, rare, most, or all circumstances. Small majorities have consistently chosen the two relatively pro-life options. Gallup has also found that while majorities believe abortion should be legal in cases of rape, severe fetal abnormality, or threats to the mother’s life, only 45 percent of the public thinks that abortion should be legal in the first trimester if “the woman does not want the child for any reason.”
In these polls, majorities of the public are expressing views in conflict with Roe and Casey. Under the Supreme Court’s current jurisprudence, abortion has to be legal for any reason until viability. After viability, it can be prohibited only with a broad exception that covers any case in which an abortionist believes the abortion is necessary to protect a woman’s physical or emotional health.
At the same time, the public does not want a complete ban on abortion. If the Court took up a case in which Roe was at risk of being overturned, its fear of that possibility would probably come to the fore. Americans who are ambivalent about abortion seem, in the main, to dislike it when politicians raise the subject. If conservative justices overturn Roe and pro-life politicians then seek legislation restricting abortion, that sentiment will work against them.
Overturning Roe would put Congress, state supreme courts, and state legislatures in charge of abortion policy. The fact that legislation to ban abortion after 20 weeks has passed the House but failed to overcome a filibuster in the Senate suggests that Congress would probably deadlock.
We would therefore see much greater variance in abortion regimes from state to state. Some state supreme courts would read, or misread, their state constitutions to require liberal abortion laws. Legislatures in deep-blue states would keep those laws in place. But pro-lifers would have a new chance to win protections for the unborn in red and purple states where state courts had cleared the field.
Even while Roe has been in place, pro-lifers have often been divided over tactics. That division — between what we could call, with no disrespect intended to either side, “incrementalists” and “maximalists” — would probably widen after Roe. The question they would face, in each state where they had the power to act, is how far and how fast to go. Trying to ban abortion even in cases of rape and even in the first trimester would spark a backlash in almost any state, and that backlash could endanger protections for the unborn that would otherwise be feasible. But there is also a risk of not going far enough: failing to protect some unborn children from lethal injustice when protection is politically feasible. Harsh penalties on abortionists, and any penalties on women seeking abortions, could also backfire; but pro-lifers will want penalties tough enough to deter.
Pro-lifers would not get the balance right every time. But even if they overplayed their hand in many places and the political tide turned against them, we could be confident that it would not be the end of the story. Pro-lifers have been told many times to lay down their placards and have never done it yet. They have established their staying power, and they will come back to fight for protections as strong as they can get.
In the long run, what happened would depend on the effects of the pro-life laws that got enacted. How much would they reduce abortion, and how much would they merely expand the amount of illegal activity? The number of botched illegal abortions before Roe was much exaggerated: Antibiotics seem to have made a dramatic difference even before any state had liberalized the law. But a few horror stories could have a large political effect. On the other hand, voters who are ambivalent about abortion could find that restrictions are not disastrous and repressive after all, and support for them could rise. Those existing laws against abortion that the Supreme Court has tolerated have not led to any notable backlash, much to the dismay of the pro-choice movement.
Denationalizing abortion policy might well have far-reaching effects on our politics. Roe played a major role in shifting the axis of American politics from economics to social issues, at least among whites. Traditionalist Christians, even if they were liberal on economics, became Republicans. Affluent social liberals who had little in common with union members became Democrats. The character of both parties changed — and the Republican party grew stronger than it had been during the New Deal era. Perhaps some of the GOP’s gains would be reversed over time in a post-Roe America.
Republicans might thus have something to fear from the overturning of Roe. But we could all also be in for some surprises.