The end of Roe v Wade and what the pro-choice movement should do
Late Monday night, an opinion, whose authenticity has been confirmed, was leaked from the Supreme Court (SCOTUS) that reverses Roe v Wade. That it leaked is stunning. While that has happened before, it is extraordinarily rare and a massive breach of trust. I have no idea who leaked it and am not going to spend any time speculating on it. We may find out or we may not, but for now the only people who know for sure are the reporters who published it. It is not their fault. They are just doing their jobs and good for them. It would be malpractice not to publish it. If anything, they deserve a Pulitzer Prize.
While the leak is bad, the much more important issue is, of course, the decision. Assuming it is the final decision, Roe v Wade would be reversed entirely, along with Casey, and abortion would now be sent to the states. Congress, for now, is not going to do anything about it either way. With elections coming up, it will certainly have an impact although how much is unknown right now and I am not going to speculate about it here.
I want to lay out my thoughts on the decision, assuming it is the final decision, and what I think the pro-choice movement needs to do going forward. While I do not like the outcome on substance, I would rather Roe v Wade be reversed than the alternative of it being watered down so much that it is upheld in name only. That is probably what John Roberts wanted to do, albeit gradually.
Roberts is a much savvier politician (yes, that is what members of SCOTUS are) than most everyone. His political instincts are uncannily good, i.e., his opinion upholding the ACA while bashing it and his general incrementalism. My guess is that is because since he is the Chief Justice, his name will be associated with whatever happens with SCOTUS while he is there and he does not want to be remembered as a purely partisan hack. He is very much a conservative, but because he is Chief Justice he genuinely does care about SCOTUS’ reputation. He wants to move the country rightward, but slowly and not in a way that generates a huge backlash.
In general, I am very much against the idea of relying on courts to enact one’s policy agenda. With a few narrow exceptions, i.e., defending free speech rights of unpopular groups, legislation is always a better route to rely on. The reality is courts are not going to do the bulk of the work for anyone. If someone wants to enact big policy changes, they are going to have to do it by legislation. Whether that means enacting new programs or getting rid of existing ones, courts are not going to do that.
I believe issues that are very heated and controversial and involve huge stakes, as a general rule, should not be decided by courts. That includes hot button social issues like abortion, but also includes economic issues like healthcare. Not only is relying on courts inadequate for accomplishing a substantive agenda, it is not great politics either. For example, during the 1960s and 1970s, liberals got many victories at SCOTUS. What happened during that period? From 1952-1992, there were 10 presidential elections and Republicans won 7 of them. Left-wing causes failed legislatively and the left-wing movement was discredited beginning in the 1970s and 1980s, which culminated with the rise of Ronald Reagan. When you win at SCOTUS, you lose everywhere else. Now, it is Republicans who will be relying on SCOTUS to do their bidding and odds are they will lose out most everywhere else even if that is not evident right now.
Where the pro-choice movement should go from here
Assuming Roe v Wade is reversed, more than 20 states will have strict abortions bans. Many if not most of those states will not even allow it for rape and incest. Deep red states will almost all ban it because most people there are opposed to it. The real battle, at least initially, will be in purple states. I am not going to predict which states will do what, but there will be a big struggle and it will likely last for many years if not decades.
The pro-choice movement, compared to other social movements like gay marriage, is at a disadvantage. That is because they never had the chance to make their case. Roe v Wade did all of their work for them and established a right to abortion that went far beyond what any consensus at the time would have produced. That is why they have been on the defensive since 1973 when Roe v Wade was decided. When you get a total victory before the country is ready for it, there will be a backlash and there will be litigation and attempts to fight back.
That is why I wish Roe v Wade had never happened. The pro-choice movement was making strides and had successfully seen abortion legalized in some states with more on the way. Most notably, abortion was legalized in California and the governor who signed the legislation was none other than Ronald Reagan. That is my favorite piece of trivia bar none.
The pro-choice movement was beginning to make their case. Then SCOTUS did all their work for them in one fell swoop. Gay marriage advocates, in contrast, had to endure years in the wilderness and suffered many setbacks along the way. When I was in high school in 2004, I remember that more than a dozen states had anti-gay marriage ballot initiatives that year and all of them passed, including in blue states. But over the years, gay marriage advocates made great strides and successfully convinced people that it was okay. By the time SCOTUS ruled in their favor in 2015, public opinion was on their side and hardly anyone even noticed.
The pro-choice movement probably would have wound up going that same route. That may even happen at some point, but it will be a long time and there will be many setbacks along the way. What the pro-choice movement will have to do is convince people that they are right, that abortion should be permitted and that bans on it are not good. Their task is going to be somewhat harder because abortion, unlike gay marriage, is not a black-and-white issue. There is plenty of middle ground between it being banned completely and legal on demand.
Polling on the abortion issue is all over the place and extremely sensitive to question wording. You can spend eternity trying to figure out any consistent meaning behind it. I do not know how much stock to put in any of it other than to say that people’s views on abortion are much more complex than the vocal activists on either side of the issue. Because of Roe v Wade, so much of the abortion debate has been theoretical or has focused on marginal issues, i.e., late term abortion. Regardless, many states are going to ban it outright or come close to it. There may be a backlash to it even in red states if such efforts go too far, but inevitably it will be the law in some states.
The pro-choice movement will have to focus on the state level and try to help get elected people who are supportive of their cause. That means for the most part electing Democrats. Unfortunately, state legislative elections have not been something Democrats have been great at lately. They have been much more occupied with national elections and especially the presidency. That is obviously important, but on the abortion issue is all but irrelevant right now. Governors and state legislators are where the action will be.
The pro-choice movement may be able to use state Supreme Courts some of the time, but that is likely a very limited option. Ballot initiatives may work, too, but not every state allows for it. The pro-choice movement is going to have to win elections if they want to have broad success. It is that simple. There is no other way.
Just as the anti-abortion movement risks overreaching, the pro-choice movement risks the same. While Republicans have positions that are likely well to the right of most people, Democrats have positions that are likely well to the left. Most elected Democrats argue for abortion to be available into the third trimester, which is likely far past where public opinion is. The pro-choice movement is going to have to avoid pushing too much or risk sending people to the other side.
That balancing act will probably vary by state, but, in general, while the pro-choice movement is likely on good ground in defending abortion in the first trimester, they are likely on much shakier ground after that. If the pro-choice movement sticks with their third trimester position and does not compromise, they risk alienating people and winding up with laws well to the right of where most people are.
The pro-choice movement will have to pick their battles wisely and be selective about which hills to die on. Fighting bans like what is in place in Texas are absolutely hills to die on. Fighting bans after 15 weeks like what is in place in Florida are not nor is fighting the Hyde Amendment. The pro-choice movement will have to tame their most militant wing or risk alienating whole swaths of people for no reason. If the only choice people are given is a total ban or abortion on demand, do not be surprised if many opt for a total ban, as unappealing as they may find it.
How successful the pro-choice movement is will depend on many factors. One is how they choose to talk about abortion. Like every issue, it is not just about the substantive policies that are argued for, but also how they are framed. Without SCOTUS shielding the pro-choice movement from their most militant members (the anti-abortion movement has this same problem), they are going to have to keep them in check. It would be a good idea to go back to the line frequently used by Bill Clinton that abortion should be “safe, legal and rare.” The pro-choice movement will need to acknowledge the complexities of the issue and that it has many gray areas. They will need to show empathy and understanding of those who are not on their side or have reservations.
Democrats have long since stopped talking about safe, legal and rare. Their position now is basically abortion on demand up until birth paid for by the federal government. That is not going to work outside of solidly blue states and should be abandoned. The pro-choice movement will need to be much less absolutist and much more accommodating. Compromises will have to be made. That will not satisfy the most militant activists and that is okay. If the choice is between attaining legal abortion, albeit with more limits than some would like, or satisfying the most militant wing of the movement and losing, the right answer should be obvious.
In making their case, the pro-choice movement will need to build as broad of a coalition as they can. That means they have to be flexible. I have written before about the need for climate change activists to not demand purity. The pro-choice movement will have to do the same. There are many people who are pro-choice or could be sympathetic to that cause who vote Republican. They may have left-leaning views on abortion, but may be right-leaning on other issues. The pro-choice crowd cannot make the mistake of demanding agreement with the entire left-wing agenda or they will alienate people for no reason. Someone may have right-leaning views on most issues, but may be inclined towards the pro-choice side on abortion, but not if they are told they have to adhere to the entire left-wing agenda.
Another crucial thing the pro-choice movement will need to do in how they talk to people is to use language that normal people use. I have written before about the tension between young activists and everyone else in the pro-choice movement so feel free to check it out for more detail. Long story short, the young activists should be ignored. The language they use, such as pretending gender and sex do not exist, is completely foreign to normal people. The pro-choice movement will need to sound relatable and like they are normal humans and not space aliens. This tweet is an example of the kind of language not to use.
Keeping a long-term perspective will be critical. In many red states, abortion bans are popular, at least for now. Convincing people otherwise can be done, but it will take time. I do not think any more than 10% of the population, at most, has strong opinions on abortion. Many of them can be persuaded to support the pro-choice cause, but it will take a lot of effort. Such efforts will likely vary widely between states and even within states.
Inevitably, there will be tragedy. There will be women who die from having unsafe abortions. There will be babies born who are unwanted and who are treated poorly. Poverty will likely increase as it will be poor women who are unable to get abortions. Such stories will probably get a lot of media coverage and may help the pro-choice movement, but it will take time.
The good news for the pro-choice movement is they have recent success stories in other countries. In the last four years, Ireland and Argentina have legalized abortion after long, hard fights.* While the US is a different country with different dynamics, so are Ireland and Argentina. I am not familiar enough with either case to give a detailed account of what happened. What I do know about what happened in Ireland is that it was more than 30 years in the making. The law that was approved in the early 1980s that banned it was voted 2-1 in favor. The law that legalized it was also voted in favor 2-1. Opinions can change, but it does not happen overnight.
The other bit of good news for the pro-choice movement is that whatever their base of support is, it is likely much greater than 1/3 so they will not have to climb out of nearly as big of a hole. Still, it is going to be a struggle in some places and they need to brace for the long haul. Assuming Roe v Wade is reversed, it will have taken the anti-abortion side 49 years to get there and they suffered plenty of setbacks along the way. That is how the pro-choice movement needs to approach the fight for abortion rights, not as a sprint, but an ultramarathon that will go through many different kinds of terrain.
*Both countries legalized abortion only through the first 12-14 weeks. Very few countries allow it on demand at any stage of the pregnancy. The pro-choice movement needs to remember that and to know their limits. First trimester abortions are the major battle. Anything beyond that is secondary and not worth fighting for, at least not right now. As I like to say, keep your eye on the ball.