Roe v. Wade Is Dead: Here’s What Happens Next
The Reversal of Roe v. Wade Will Have Impacts beyond Abortion
TL:DR Top-line Points — Roe’s reversal will have implications that extend far beyond the case itself and impact politics for years:
- The legality of abortion will significantly change in only a handful of states.
- Dobbs will give Democrats a boost, but will help the GOP in the long run.
- Democrats could-but won’t-learn some lessons from the abortion debate and apply them to their approach to gun control.
- Democratic enthusiasm for destroying inconvenient political norms and institutions will galvanize.
- Violence and intimidation will surge in the wake of Dobbs, but most of the media will ignore-or excuse-these acts.
It is overwhelmingly likely that the 1973 Roe v. Wade Supreme Court decision will be cast upon a long-smoldering bonfire within days — if not hours — of this writing.
That such a thing is even possible, much less highly probable, is the result of decades of work by the Federalist Society and other advocates of judicial restraint. And that’s to say nothing of the careful, patient efforts by pro-life forces that have built the necessary political will for a reversal. This will endured and grew, even in the face of an intimidating pro-choice movement that dominates most public discourse.
The alarmism is a rhetorical tool, of course, and most (but not all) of the advocates making these claims know that the truth is much milder. But it’s hard to fundraise off of “mild.”
1. Most of the country will not have outright abortion bans.
If I had one wish about any conlaw controversy, it would be for the median American to understand that there is a difference between “Is X a constitutional right?” and “Should X be legal?”
Or, more properly: many states’ abortion laws may change, but abortion rights will not. It is the case that many states simply rely on Roe as a backstop for abortion protections, rather than, say, enshrining an explicit right to abortion in their own state constitutions.
Numerous states do have current protections on the books, and several states that do not will hurry to do so to one extent or another in the wake of the reversal. Otherwise, the law in those states may simply revert to pre-1973 conditions by default.
You may have read articles that claim that “half” the country will ban abortion if Roe is overturned. This is not accurate. Normally, these analyses quietly lump “bans” and “restrictions” (beyond Roe ‘s very liberal limits) in one category.
But most on the left aren’t interested in federalism-during times when Democrats are in charge of the federal government, that is. What they would prefer under those circumstances is a federal regime (including the Supreme Court) dominated by leftists, dictating progressive precepts as mandatory to the entire populace.
2. Roe’s overturn will be a boon for Democrats in the weeks that follow, but will ultimately help Republicans if Dems can’t moderate themselves.
Thankfully, our Founding Fathers (and most who came after them) knew better.
Roe ‘s end will mean a net increase in abortion restrictions overall, but only a few states will enact strong pro-life legislation in response to the overturn. In much of the country, abortion law will continue to be more permissive than it is in, say, the median European nation, which wouldn’t permit on-demand abortion beyond 20 weeks.
Even with brutal inflation and oppressive prices on housing, food, and gas, fired-up liberals will open their hearts and pocketbooks to help the party blow away every pre-election fundraising goal.
The reversal may also make a meaningful dent in GOP support among suburban women come Election Day. However, there’s no question that a red wave is coming. It’s just a matter of how big it will be.
Even after the Dobbs leak, polling has shown consistently that not only is abortion not one of the top five or six issues on voters’ minds, but that all of the top-of-mind issues favor Republicans.
Inflation generally, gas prices specifically, border control, violent crime, election integrity, and school / parental issues are those topics, in some order. Every single one of them tilts toward the GOP.
Roe removed most abortion-related questions from the political arena altogether. The case left the GOP to push for incredibly modest victories around the margins, and even these measures usually came with immense and costly legal challenges and relentlessly harsh criticism from mainstream media voices. Democrats never even had to defend their ideas beyond broad platitudes and slogans, because a federal judge would simply erase any Republican legislative efforts without Dems having to lift a finger.
Post- Roe, the rules of engagement will look much different. The recent congressional hearings that saw abortion advocates and “health experts” unable to explain why infanticide shouldn’t be legal, or what a woman is, will now proliferate throughout the United States any time pro-life legislators want to press the issue.
Even in areas where pro-life support is weak, conservatives will still be able to force pro-choice lawmakers to explain why they favor laws that permit severing the spinal column of a creature that can feel pain, or dismembering a viable fetus, or selling the tissue of aborted babies. In other words, even where pro-life measures don’t have the votes to win, they’ll make the other side seem increasingly insane in the process.
3. Democrats will fail to learn the right lessons from the abortion debate and be unable to apply those lessons to gun control advocacy.
In particular, this parade of horribles will illustrate just how radical national Democratic Party leadership has become, up to and including purging most or all pro-life Democrats. This will become a major problem for Dems after the initial funding sugar rush.
If Democrats allow more moderate voices to ascend to their leadership levels, the move will actually be a hugely helpful development for the party-and possibly the only thing that can save it from another beating in 2024. Those moderate voices would not only demonstrate that pro-life lawmakers may still have a place in Democratic politics, but they would also make it easier to continue to portray Republicans as the “real” extremists.
However, given the previously discussed pervasiveness of the Successor Ideology, it’s difficult to see the Democratic Party, of all things, being one of the first institutions to roll back its “wokeness.”
Rather than rational debates around how to moderate their message, I expect we’ll instead see things like arguments within the DNC about abolishing the word “woman,” even as socially conservative Hispanics flee the party en masse as it descends into further lunacy.
4. Democrats will now radicalize further in terms of attempting to reshape or destroy established American political structures.
As I said earlier, the conflation of “is this a right” and “should this be legal” is a problem that hamstrings intelligent debate on all sides. In terms of gun control, we see the flipside of this challenge, as progressives lament that there is a right to bear arms at all (sometimes offering ahistorical claims that no such right exists). We see these same folks calling not only for sweeping federal legislation to control guns, but also sometimes calling for the repeal of the Second Amendment.
All but six states currently enshrine the right to bear arms in their respective constitutions. This is due in large measure to the fact that, prior to , such a right was considered “unincorporated” in an individual capacity. Likewise, prior to incorporation, it was understood that the federal Bill of Rights were mostly limits on federal power specifically, not state power. So, separate state-based constitutional rights were necessary to protect citizens from their state governments trying to pass restrictive laws that the federal government could not.
That’s why even something as dramatic (and politically impossible) as a repeal of the Second Amendment would do almost nothing from a practical standpoint. Furthermore, most federal legislative efforts to circumvent or curb this right would almost certainly be null and void on Tenth Amendment grounds. As a sidebar, I believe a post- Roe ban on abortion would have that same defect, and I would criticize that effort on those grounds.
But the latter provides that oh-so-delicious instant gratification, whereas the former takes decades of incremental state-level advocacy and will-building. And they are not patient. Which brings me to my next point.
For all of their supposed love of “norms” and “institutions,” and all their hyperventilating over January 6th as the darkest day in American history, the progressive wing of the Democratic Party openly advocates for modifying or abandoning norms and institutions any time such structures provide an obstacle to progressive ascendancy.
All kidding aside, Democrats would clearly have an easier time generating support for an expansion to 11 seats than they would expanding to 13.
With that said, both proposals would appear to be blatant power grabs to the median voter, and any attempt to expand the Court that advanced beyond mere outlier rhetoric would do far more harm than good for Democrats in November and beyond.
Although the filibuster no longer applies to judicial appointments thanks to the tireless, incredibly short-sighted work of Harry Reid, conversations around expanding the Court will also inevitably also revive talk of total abolition of the filibuster, a Senate rule that we’re supposed to believe is “a relic of the Jim Crow Era,” but only when used by Republicans.
5. Radical abortion activists will become more brazen and violent, and the mainstream media will provide them with extensive cover for these acts.
Another sidebar: if the GOP were foolish enough to pursue some kind of nationwide abortion ban in 2023, I’m guessing Democrats would instantly rekindle their love affair with the filibuster.
Speaking of abolition, Democrats will remind us that we wouldn’t be in this position in the first place if that darned Electoral College didn’t exist! After all, two Democrats who would have served in recent years won the popular vote but did not win the presidency. That meant that they weren’t around to appoint justices to the current Court, which tilted the Court’s balance away from liberal judicial activism and “implied” rights.
This is the method to “fix” the Court’s composition from the other end of the equation. After all, progressives believe no Republican could ever again win the popular vote, so eliminating the Electoral College would effectively guarantee permanent Democratic occupancy of the White House.
Yet, because most of these solutions will be unworkable for the foreseeable future, expect a hefty dose of commentary from every journalistic and progressive corner designed to undermine faith in these institutions further. I’m speaking here of columns on how the Senate is inherently “undemocratic,” written by people ignorant of the history of our country, and of retained sovereignty.
This one is happening as we speak. Since the leak, there have been dozens of examples of vandalism, harassment, and even violence targeting pro-life individuals and organizations. These incidents come in the wake of intimidating protests at the homes of Supreme Court justices, as well as a near-assassination attempt on Justice Brett Kavanaugh.
Two points to consider, here. First, these incidents will get worse in the immediate aftermath of Dobbs. We’ve already seen menacing materials making the rounds in Washington in advance of the ruling. It’s also possible we’ll see another series of violent protests as we did in the summer of 2020-albeit admittedly on a smaller scale. The pandemic was a contributing factor in fueling the scope and nature of the Floyd protests, and that pressure valve is open now.
Thus, it’s unlikely we’ll see anything as widespread as what happened in 2020. What we might see, though, is a protest movement that focuses mostly on D.C., if not the Court itself. We may just see a continuation of the harassment campaigns we’re seeing unfold now.
In any event, my second point is that 2020 also taught us how the media will-or won’t-cover these incidents. Any event that can be portrayed sympathetically will be in heavy rotation on the major broadcast and cable networks, FNC aside. Any event that inherently casts the pro-choice movement in a negative light will be minimized or ignored.
We’re seeing how this will play out in real time. The Kavanaugh assassination received modest coverage from major media outlets and quickly disappeared. The aforementioned attacks and harassment incidents go virtually unreported except for conservative outlets highlighting how much they’ve been minimized. Most commentators, at best, treated the ethics of protesting at justices’ homes as an open question, and, at worst, argued strongly in favor of the practice.
Still, making abortion a genuine issue in the political (rather than legal) arena for the first time in 50 years is going to shape the next decade of American politics in a number of ways-including in some ways that even I can’t guess.
If you enjoyed this post, please consider subscribing to my Substack, which will allow you to see new posts first, as soon as they publish!