There Will Be No Settlement On Abortion

A one-time hope that no longer looks plausible

The 2020 March for Life in Washington, D.C.

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The big news story of the past 24 hours is the leak of a draft decision written by Samuel Alito that would explicitly overturn Roe v. Wade. In many ways, such a decision feels overdetermined. Three sitting Justices (Gorsuch, Kavanaugh and Barrett) were appointed by President Donald Trump who promised explicitly only to appoint people who would overturn Roe and who ran his choices by gatekeepers in a position to know who was a good bet in that regard and who was not. Two others (Thomas and Alito) were appointed by Republican presidents aiming to appease the right wing of their party after prior choices (Souter, who was confirmed, and Miers, who was not) raised movement hackles. If such a process couldn’t deliver the judicial goods, it’s hard to imagine what process could.

A number of observers have recalled that at a similar point in deliberations in 1992, the Court had a 5-4 majority to overturn Roe, and Chief Justice Rehnquist wrote a draft decision to that effect. Instead, Kennedy switched sides, and the plurality opinion in Planned Parenthood v. Casey explicitly upheld the core of Roe. Could something similar happen again? I find that very hard to imagine. The three most likely possibilities are a plurality decision written by Alito similar to what has been leaked, with a total of six Justices concurring in part to overturn Roe; the same sweeping decision but with a narrow five-vote majority and Chief Justice Roberts in dissent; or a 6-3 decision written by another Justice that overturns Roe but does so in less-sweeping terms that don’t declare open season on a host of other precedents. But it’s very hard for me to imagine Kavanaugh, Gorsuch or Roberts joining any decision that explicitly upheld the core of Roe. They could try to write an incremental decision that slices the salami even finer, but given the host of restrictions being passed and the prospect of ever more litigation, it’s reasonable to ask of those anxious about explicitly overturning a longstanding precedent, “if not now, when?” I don’t think they have a good answer because I don’t think there is one.

Precisely because it is overdetermined, much of the discussion about the end of Roe has focused on the political implications. Will Republicans suddenly face a backlash at the state level now that abortion votes actually matter, such that overturning Roe actually benefits Democrats, and ultimately expands abortion rights? Or, alternatively, will federalism provide the solution to the abortion wars, with some states (like New York and California) enshrining expansive abortion rights in legislation and others (like Texas and Missouri) banning the procedure entirely, allowing politics to realign on other issues?

I’ve held out hope for both positions in the past. Fundamentally, I believe that individual rights do not descend from the heavens to be discerned by a judicial elite, but depend on a popular consensus of support. The Court can play a vital role in forcing consistency in applying those rights; there is often a popular consensus in favor of certain rights and simultaneously a popular enthusiasm for denying those rights to individuals or groups that the majority doesn’t like. Protecting the rights of disfavored minorities and individuals is therefore a core part of the Court’s role. But if the rights themselves don’t have popular support, then I don’t think the Court can ultimately defend them. On that basis, many have argued that the Court actually set back the cause of abortion rights by trying to resolve the issue prematurely, and have also argued that where local majorities differ profoundly about the nature of rights then respecting those differences should lead to a stabler and healthier politics.

But I don’t really believe that anymore. I still believe, fundamentally, that rights depend on a popular consensus, but I don’t believe there is a popular consensus on abortion rights, and I don’t believe either side in the abortion wars has any interest in building such a consensus. And that’s a recipe for a continuation of the abortion wars.

Solidly anti-abortion states aren’t just going to ban abortion within their borders; they are going to undertake efforts to prevent people from leaving the state to obtain an abortion and, if possible, to undermine abortion rights access in other states across the country. When Republicans retake Congress, they will come under pressure from their base to pass federal laws that limit abortion rights nationally. Meanwhile, advocates of abortion rights are not going to stop by enshrining them in the states where there is a popular consensus. They are going to try to leverage the power they have, in those states and, when they control it, in Congress, to punish states that ban abortion. Large private corporations as well will likely be drawn into the battle; it is hard for me to believe that the major technology companies who have rapidly expanded their operations in Texas, for example, will be indifferent to a complete ban on abortion in that state, or that Texas Republicans will be sanguine about those companies voicing their opinions on that subject.

Most Americans do not have strongly-held and extreme views on abortion. Roe v. Wade is a popular decision, but most people probably don’t fully understand how it has been applied. Fewer than 20% favor an outright ban on abortion but only a bit over 30% favor unrestricted rights; the broad plurality lies somewhere in the middle, and has for decades. A clear majority favors the availability of abortion in the first trimester, but large majorities favor restrictions thereafter. In theory that, should make it possible for America to find an equilibrium similar to Europe’s, where different countries have more or less restrictive abortion regimes with most countries somewhere in the middle.

But I don’t believe we will. Abortion will continue to be a political lightning rod after Roe is overturned, and the central touchstone for an ongoing culture war that shows no signs of letting up. Battles over the issue not just within but between the states, and between the states and the federal government, will wind up in the courts, so the judiciary will not avoid being embroiled in its politics. That in turn means that the politics of the judiciary will not cease to be contentious and destructive of its own credibility. I hope I’m wrong about that. I hope, instead, that abortion becomes a settled issue in states with clear popular majorities on either side, and a contentious issue in states without such a majority, which would vindicate views I’ve held for a long time about the political benefits of a less-activist judiciary. I just have a lot less hope than I used to.