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Overturning Roe might be simple; the politics that follow won't be

Why We Wrote This

The abortion debate has been at the heart of the culture wars ever since the 1973 Supreme Court decision. If the issue goes back to the states to sort out, it could scramble the political landscape in unexpected ways. 

Julie Jacobson/AP
Women demonstrate during an abortion-rights rally, Tuesday, July 10, 2018, in New York. Many Democrats and abortion-rights supporters believe a new conservative justice could tilt the court in favor of overturning Roe v. Wade.

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If the Supreme Court gains another conservative justice this fall, analysts expect it may overturn – or substantially weaken – the landmark Roe v. Wade decision, sending abortion policy back to the states to hash out. Reproductive rights advocates are already preparing for that outcome. Even with Roe in place, more than 400 abortion restrictions have been passed at the state level, and many states would likely see an uptick in those restrictions. But legislating – particularly on a controversial issue like abortion – is rarely a straightforward process. While four states have “trigger laws” in place that would automatically ban abortion as soon as Roe is overturned, most would need lawmakers to introduce and vote on new bills. Some analysts say, when push comes to shove, legislators may not relish codifying their rhetorical positions into concrete laws. Previously, “state legislatures could duck this controversial social issue and say … ‘The Supreme Court has taken it out of my hands,’ ” says Dwight Duncan, a law professor at the University of Massachusetts Dartmouth. “If Roe v. Wade was undone, the issue is back in their ballpark and they no longer have that excuse.”

With the US Supreme Court poised to slide further to the political right if President Trump’s nominee is confirmed, the end of the Roe v. Wade era suddenly seems a very real possibility. 

Roe, the 1973 ruling that legalized abortion in the US, has been at the heart of a heated culture war that’s split the nation largely along partisan lines. Almost as soon as the decision was made, antiabortion activists began working toward a high court roster that would reverse the ruling. Judge Brett Kavanaugh’s confirmation, if it goes through in the fall, would give them their most conservative – and most promising – lineup in decades.

But if Roe is overturned, what then? Would America be flung back into an age of back alleys – or forward into a “Handmaid’s Tale” dystopia – as some abortion-rights advocates fear?

If the Supreme Court does overturn Roe – or substantially weakens it, which is what many experts are predicting will happen – it would send abortion policy back to state legislatures to hash out. Already, even with Roe in place, more than 400 abortion restrictions have been passed at the state level over the past half-decade. Without Roe, some states would likely see an uptick in those restrictions, resulting in a wider gap between states in terms of access to safe, legal abortions, policy experts say. Reproductive rights advocates are already calling for “all hands on deck” in preparing for the worst.

But legislating – particularly when it comes to a controversial issue like abortion – is rarely a straightforward or simple process. While four states have “trigger laws” in place that would automatically ban abortion as soon as Roe is overturned, many others would need lawmakers to introduce and vote on new abortion bills and update their existing statutes. Some legal analysts say that when push comes to shove, legislators, especially in swing states or in states with divided government, may not relish having to codify their rhetorical positions into concrete laws and regulations.

“Up until now... state legislatures could duck this controversial social issue and say – to whomever they’re talking to, whether they’re pro-choice or pro-life – ‘I agree with you, but there’s nothing I can do about it because the Supreme Court has taken it out of my hands,’ ” says Dwight Duncan, a professor at the University of Massachusetts School of Law in Dartmouth. “If Roe v. Wade was undone, the issue is back in their ballpark and they no longer have that excuse.”

“The politics change,” he says.

Not only will state representatives be forced to tackle the myriad and complex details of abortion policy, but they’ll likely be doing it with advocates on both sides rallying voters around the issue.

Some say that’s a good thing. Policies set by the legislative branch, as opposed to the judiciary, tend to be perceived as more legitimate because they reflect the will of the people. “We’re a democratic republic, and ‘we the people’ ultimately should be the rulers. To the extent that it’s unelected people in robes deciding these questions, ‘we the people’ are essentially left out of this,” Professor Duncan says.

It could also scramble the nation’s political divide in unexpected ways. The fulfillment of such a long-held conservative goal – overturning Roe – could potentially deprive the Republican Party of what for decades has been a top motivating issue for many of its voters. “Anti-Roe sentiment is a combination of two things: a sincere hostility to abortion and sexual freedom... combined with the argument that this [ruling] is rammed down the public’s throats by unelected life-tenured lawyers,” says Eric J. Segall, a professor at Georgia State University College of Law in Atlanta who wrote a book on the Supreme Court. “The second [argument] goes away once Roe gets overturned.”

Others suspect that a reversal on Roe could spur a fierce reaction from liberals that would mirror the rise of Christian conservatives as a political powerhouse after 1973. “That could be the kind of energizing force needed to create a backlash on the left, thus energizing the Democratic Party,” says Mark Kende, director of the Drake Constitutional Law Center in Des Moines, Iowa.  

Still, without the Supreme Court protecting a woman’s right to decide whether or not to have an abortion, reproductive rights activists worry that many states will reverse what they see as decades of progress – especially for women in poor and rural communities. Already, since 2011, 33 states have enacted a total of 420 policies restricting abortion, according to the Guttmacher Institute, a reproductive rights research group.

“What we’ve seen in the past eight years has been devastating to abortion rights,” says Elizabeth Nash, a policy analyst for the Washington-based nonprofit. “Without those [Supreme Court] protections, those restrictions will proliferate.”

Yet even then, analysts say, it’s unlikely America would see a reversion to the worst of the pre-Roe era in terms of a rise in unsafe alternatives. Medical abortions, which take the form of pills, offer an option beyond what was available to women in the ‘50s and ‘60s – though of course, no one wants to encourage women to resort to illegal means. “That’s a shabby use of law to say, ‘Well you can also get an illegal pill,’ ” says Carol Sanger, a professor at Columbia Law School in New York.

Women today also have more political power, which means that any abortion restrictions that surface after a reversal on Roe would likely face more challenges. (While certainly not all women are pro-abortion rights, they have been the main drivers of the reproductive rights movement.)

And whatever abortion restrictions may be passed after Roe is overturned “may not be the final word,” says Professor Sanger, who also wrote the book, “About Abortion: Terminating Pregnancy in Twenty-First-Century America.” Given enough opposition, laws can be lobbied against and repealed. “I can imagine someone introducing a bill saying, ‘This law doesn’t work. We haven’t thought it through enough,’ ” she says.

“We’re going to see some really interesting politics going on,” Sanger adds. “It’s much harder to take a right away than instill a new one.”

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