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This is neither my last word on the subject, nor the Supreme Court's
Graphic from The New York Times tracking the states that have or are expected to ban abortion outright in the wake of the Dobbs ruling.
As someone who thinks the decision to terminate a pregnancy is a morally serious one that shouldn’t be trivialized by the suggestion that it is no different from any routine medical procedure, who nonetheless strongly favors a liberal abortion rights regime (and has moved farther in that direction over time), but who also favors a judiciary that is more deferential to both Congress and the state legislatures, I have complicated feelings about the Court’s decision to overturn Roe v. Wade. I don’t have complicated feelings about the likely short-term consequences of that decision: it will prompt a number of states to pass laws that I think will cause unwarranted suffering. On the other hand, what Justice Barrett said at her confirmation hearings—that Roe was not the sort of precedent that was generally settled and accepted because so many state legislatures were repeatedly challenging it—was clearly correct: Roe had not taken the abortion issue out of the political arena but had merely dragged the Court more deeply into it. But regardless of my views of Roe as constitutional law or abortion as an issue, I believe what I said last week: I think the decision to repeal it will further undermine popular respect for the Supreme Court.
My argument in that piece was that the Court damaged itself as much by the way Roe was overturned as by the mere fact that it was overturned. Baldly saying “Roe was wrong from the beginning because it was poorly reasoned” (even though, let’s face it, it was, as a host of liberals who supported abortion rights, including Ruth Bader Ginsburg, argued) is hard not to read as an insult to the majority in that case, and as evidence that the Court may change its mind about very fundamental matters when it changes its personnel. I find it much less troubling when the Court says, instead, that has changed its mind because it has learned something. Contrast the decision in Dobbs, for example, with Brown v. Board of Ed, which overturned Plessy v. Ferguson by saying, in so many words, that separate simply could not be equal in practice (even if funding, for example, were equalized between segregated schools) and therefore was unconstitutional. That’s subtly but importantly different from simply endorsing Justice Harlan’s stirring dissent in Plessy and saying that the constitution is and always was color-blind.
But if I am honest with myself, there was probably no way the Court could overturn Roe without dealing itself another blow. If they declined to overturn Roe outright, but had somehow upheld the Mississippi law at issue in Dobbs, the Court would have faced more and more direct challenges until they either upheld Roe or overturned it—and with this Court they would eventually have voted to overturn. If they had overturned Roe on some subtler basis, meanwhile, whenever they did so, the reaction would likely have been the same as it was to the actual decision in Dobbs. Without Roe, a great many states are going to place extremely severe restrictions on abortion. That’s why so many people are upset, not because of how it was overturned. (Indeed, many of those who are upset not only show no signs of having read or grappled with the arguments of the decision, but have failed to distinguish between overturning Roe and banning abortion outright.) And that’s one reason why the abortion wars aren’t going to end.
Because they aren’t going to end, though, the Court isn’t going to escape needing to opine over and over again on what is and isn’t permissible. For example, while the Court returned the issue to the states, we may nonetheless get federal legislation to protect abortion rights—or, when the Republicans retake power, to restrict them. The Court will have to decide whether abortion really is entirely a state matter (in which case it would have to strike down either federal protections or federal restrictions) or whether there’s some basis for the federal government expressing an interest in the subject. Bear in mind that even if outright codifying Roe or banning abortion is off the table, the federal government has a number of fiscal and regulatory levers it might pull for either the pro- or anti-abortion rights side in order to strong-arm the states into liberalizing or restricting their laws. Any and all of this would wind up in court.
The states, too, are likely to take steps that will raise novel legal questions. Anti-abortion states are definitely going to try to criminalize traveling out of state to obtain an abortion. That’s something Justice Kavanaugh explicitly cited in his concurrence as questionable—he might turn out to be the deciding vote in a future case, and get the chance to repeat those words in an opinion. The most restrictive states are likely ban pharmacies from dispensing abortifacients—something that I’m pretty sure is entirely under the FDA’s purview. Since medication-induced abortions now constitute more than half of all abortions, I am sure some states will try to regulate the medications themselves in order to ban them, and will wind up in court. There will also be challenges to laws that require investigation of miscarriages (possibly on the basis of the 4th Amendment), and laws that interfere with genuine life-saving treatment without an obvious rational basis. Nor is it certain that only the restricting states will pass legislation that present novel legal problems. I wouldn’t be surprised if some states with liberal abortion laws try to use their own economic leverage in envelope-pushing ways against anti-abortion states, perhaps directly, perhaps through the medical system, and perhaps through pressure on employers.
The bottom line is, I expect there are going to be a lot of dubious laws thrown up, and if the Court wants to regain some of the respect it has lost, it is going to have to figure out how to decide these cases not by a familiar 6-3 or 5-4 vote with a conservative majority, but 7-2, 8-1 or 9-0. Having returned this question to the states, if the Court cannot then find common ground between liberals and conservatives over how to live with a balkanized abortion rights regime that reflects the state-by-state variation in views on the subject, then it’s vanishingly unlikely the rest of us will either.
The Benefits and Limits of Testimonial Appeals
Kevin Drum posted yesterday about how disappointed he is with how bad liberals are at defending abortion, and I feel like I know what he means but that we have been reading very different things. Most of the pieces I’ve been reading haven’t been “defenses” of abortion at all in the sense of a structured argument. They’ve been pieces like this column giving personal testimony about how dangerous giving birth is, or this story about a teenager in Texas who has twins in part because Texas’s abortion ban limited her ability to get an abortion quickly.
What I’ve seen a lot of, in other words, is testimony and storytelling. I’ve read (and listened to) lots and lots of personal stories from people who have had abortions—including from friends, relatives and total strangers—about why they had them and how some of the laws that have been or now will be passed would have changed (or threatened) their lives. I happen to think that’s quite valuable. If a human story connects, it can profoundly affect someone’s view of the law. And unlike judges, who are supposed to be dispassionate, it is completely reasonable and normal for voters to make decisions entirely on the basis of emotional appeals and paradigmatic examples.
But while I think this storytelling is valuable, I do want to add a few important caveats.
The first and most important is that inasmuch as you want storytelling to change minds, you have to tell stories to people whose minds you want to change. There’s nothing wrong with preaching to the choir—they’re the ones who show up every Sunday, after all—but you can’t make converts that way. And there are converts to be made. There are lots and lots of people with mushy-middle opinions on abortion. (In a lot of ways, I’m still one of them.) There are also lots and lots of people with anti-abortion views who might be quite fuzzy on the nuances of the issue. (For example: in a state where abortion is legal only to protect the life or physical health of the mother, how will a doctor who believes an abortion is warranted protect themselves from prosecution? How will they even be trained in the procedure if their training and practice were always in-state?) Are they hearing the stories that you’re telling? If not, why not? It better not be because you refuse to speak in forums where abortion opponents are also speaking.
The second caution is that a given story might not land the same with you as it does with other audiences. I had a very different reaction than my wife did, for example, to the story about the teenager with twins; she thought it was a straightforward tragedy, whereas I had more complicated feelings. I think someone strongly opposed to abortion would have yet another reaction—they would emphasize that the mother is now married to her boyfriend, that he has embarked on a serious career, that she is strongly bonded to her twins in spite of the toll young motherhood has taken on her, and say: this is actually a story of the Texas law’s success, and that with enough examples like this one you could change a culture. One reason that I think it was a good piece of journalism is precisely that it could be seen from so many different perspectives.
My last caution, which builds on the prior two, is that while stories and personal testimony can be a very powerful basis for argument, they aren’t the same thing as an argument. Among other things, they don’t cause the arguments that might have motivated someone to become opposed to abortion (or merely to have qualms about it) to evaporate. Moreover, very different arguments are going to be appropriate going forward in different venues. One place where the rubber now meets the road is in convincing restrictive states to pass laws that are less-restrictive or more-humanely-restrictive. Changing minds at the margins in that context requires very different arguments from the kinds you might use in a fundraising letter—and the people who are inclined to give money also need to understand and embrace that fact.
Bottom line: stories aren’t conversation-enders. They’re conversation-starters. They are great conversation-starters, and if used as such could prove extremely valuable. If used as conversation-enders and in lieu of arguments, I suspect they will mostly fail, and might even backfire.
Three pieces on this Substack this week, and nothing anywhere else:
The first tackled the collapse of the anti-Netanyahu coalition government in Israel, and the prospect of new elections. As I read the tea leaves, the government torpedoing itself felt like a Hail Mary mainly aimed at remaining in power as a caretaker government after further electoral deadlock, which I don’t think is a good strategy. But a reader suggested that Yair Lapid and Mansour Abbas’s actual Hail Mary is to get a surge in the Arab vote that materially changes the composition of the Knesset from what polling currently suggests it will be. Clearly one of the hopes for the coalition is that it would demonstrate that a coalition with an independent Arab party in it could govern effectively and make progress in intercommunal relations, which in turn would be expected to feed back into a more electorally-engaged Arab sector substantially willing to vote for coalition member parties. I’m skeptical that the case has been made adequately yet to affect turnout, but we will see in the fall assuming elections are called.
The second tackled the New York gun rights case, which, though it has far fewer direct consequences than the overturning of Roe, bothered me quite a bit more because of its exceptionally shoddy history and cavalier reasoning. That probably just goes to show that I care too much about how the Supreme Court reasons and not enough about the actual results, and that I should be more of a legal realist and less blinded by the mystique of constitutional law. Which may be true, but I am who I am, and the decision in that case really was infuriating, particularly when I knew Roe was about to be overturned for being a signature example of judicial overreach.
The final piece was a look back at the promise of Chief Justice Roberts’s vaunted institutionalism and how it doesn’t matter anymore now that there are five votes to his right on such a wide array of matters before the Court.
The Supreme Court is clearly on a roll, what with the decision in Kennedy v. Bremerton School District on whether a public school coach can be forbidden from praying at a game. I may write about that one, and more generally about how the free exercise and establishment clauses come into conflict, and what to do when they do. But the real big kahuna yet to come is West Virginia v. Environmental Protection Agency with its potentially broad implications for the entire edifice of federal regulation, which I will definitely be writing about in one venue or another, whatever the Court decides.