Neil Gorsuch’s probable ascension to the Supreme Court nicely conforms to a script that pro-life advocates hopeful of seeing Roe v. Wade overturned have been writing in their minds for the past year: Elect a Republican president, who soon fills Scalia’s seat with a pro-life justice, to keep the score close. Then the pro-life side takes the lead when the president substitutes an anti-Roe justice, or even two, for one or two who are pro-Roe, as Anthony Kennedy (age 80) has indicated that he might like to retire, while Ruth Bader Ginsburg, given her fragile health, might have to.
That scenario has now begun to be played out in the news. It entails some major assumptions. One is that Gorsuch, who has written a book against euthanasia and assisted suicide, is not only pro-life on abortion as well but is specifically anti-Roe. It is possible to hold, as Gorsuch has written, that “the intentional taking of human life by private persons is always wrong” but to conclude that Roe should stand because overturning it would constitute another wrong, a sudden rules change in the middle of the game. In Planned Parenthood v. Casey (1992), Sandra Day O’Connor, joined by Kennedy and David Souter—all three nominated by pro-life Republican presidents—defended Roe by noting that
for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. . . . The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.
Such reasoning flows naturally from a certain kind of conservative temperament. During the campaign to expand abortion rights through state legislatures in the 1960s and early 1970s, the right-to-life movement meshed easily with the conservative instinct to preserve laws that reflected a traditional moral sentiment to protect unborn children and treat them delicately. Overnight, Roe redirected to the abortion-rights cause the allegiance of those whose conservatism resides primarily in their respect for law and established order.
Given the surprising decision by Chief Justice John Roberts in King v. Burwell (2015), in which he joined the majority on the Supreme Court to uphold a key component of Obamacare, we should be mindful of the temptation and pressure that he or another justice broadly sympathetic to the anti-abortion cause might feel to discover arguments for preserving Roe, and the status quo, if the Court eventually found itself on the precipice of stoking civil discord by sending the issue back to all fifty state legislatures. Most Americans do not welcome that outcome, if polls are correct, and even many who want Roe to be overturned think that abortion should remain legal under most circumstances.
In 2014, voters in North Dakota, a conservative state, rejected almost two-to-one a proposal to amend the state constitution to define human life as beginning at conception. It was widely understood that the amendment would make abortion even in the early weeks of a pregnancy illegal. So, if the Supreme Court wishes of pro-lifers fall into place and somewhere down the road it overturns Roe, lawmakers in Bismarck can impose greater restrictions on late-term abortion than would pass in Albany or Sacramento, but don’t assume that any state laws pertaining to the first trimester, when about 90 percent of abortions are performed, will differ significantly from the license currently in force.
Roe already grants states the ability to restrict abortion in the third trimester, which accounts for less than 2 percent of abortions nationally. The ground on which the pro-life movement has the best chance of advancing if Roe is overturned is the second trimester. Roe prevents states from restricting abortion before fetal viability, which is now considered to kick in around 23 weeks. The viability stipulation doesn’t make any sense to a lot of people—the Court could just as easily have argued that it’s unjust to abort unborn children especially when that means forcing them from the only environment in which they can survive—but bracket that thought. The viability clause currently obtains. If Roe is overturned, it no longer will, unless a state’s voters or lawmakers decide to incorporate the concept into their new abortion laws.
In theory, pro-life advocates might achieve bans on abortion from the moment of conception in conservative states, but they should tread carefully, not only because they would be picking a fight that they appear unable to win at this point in the history of the anti-abortion movement but because they would risk provoking a backlash that would set the cause back. Ruth Bader Ginsburg has made the mirror observation: With Roe, she noted, the Supreme Court gave “opponents of access to abortion a target to aim at relentlessly. . . . My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change” in the direction of liberalization of state abortion laws in the 1960s and early ’70s.
For a few years not long ago, some reputable polls indicated that momentum was on the side of abortion opponents, as the percentage of respondents who claimed the labels “pro-life” and “pro-choice” rose and fell, respectively, and the trend among Americans under 30 looked mildly promising. Recent data from leading pollsters are less encouraging. Pew Research shows that, by a substantial margin, 69 to 28 percent, Americans oppose overturning Roe. According to Quinnipiac, 70 percent “agree” with the decision, and the trend for opinion on key abortion-related questions—legal in all cases? most? illegal in most? in all?—has been shifting toward the pro-choice side over the past 18 months. Support for a ban on government funding of abortion is strong, but so is opposition to a total ban on the procedure. Welcome to American libertarianism.
Most Americans feel ambivalent about abortion and do not like talking about it or being made to think about it. Many resent both sides of the abortion debate for making them do so. Committed pro-lifers will celebrate if down the road the Supreme Court in effect rules that we must now debate and rewrite our abortion laws state by state, but many Americans, including some who think that the pro-life side is more right than not, will resent the demand on their attention and emotions.
Politics is downstream of culture. Like the larger conservative movement to which they have hitched their wagons, however, pro-life activists have poured a disproportionate amount of their energy into politics, won some legal and legislative skirmishes, and proved that politics can change the culture, at least a little, up to a point. Push the political solution half a step ahead of the public, encouraging it to stretch and catch up with us, and it might, or some segment of it might. Push ahead ten steps and we will have left behind, even pushed away, most of those who were willing to give us a chance. We can’t skip steps. It would be a strategic error.
We believe that justice demands more restrictions on abortion than our neighbors are willing to accept. Our first order of business is to persuade them. Then we can go to work drafting the laws that reflect their, and our, moral consensus.