The Unintended Consequences Of Roe V. Wade

What would have happened if abortion rights had been decided by the voters over time instead of in one fell swoop by the court in 1973?

Abortion is one of those topics that I don’t care much to discuss, if possible, simply because A) it’s so divisive and B) I’m a man, so when it all comes down to it, I don’t really have a say in the matter (an opinion, sure, but it’s not my body). I am not a fan of abortion—in an ideal world I think we can all agree, there would be no abortions because there would be no unwanted pregnancies, no rapes, no incest, no birth defects or danger to women during childbirth—but I am 100% in favor of a woman’s right to choose. You can hate something and realize that its alternative is also horrible.

The reality is, no matter how awful the notion of abortion is—and I don’t really have a strong sense of when “life starts” or whatever, but more on that in a second—the alternative, in which women and girls are forced to either carry an unwanted pregnancy to term or seek out black market abortions is worse. Sometimes there are only bad options available, and so we pick the lesser of two evils. Sure, ideally we would all practice safe sex and no human being would ever consider sexually assaulting another human being but here we are, in the real world. We work with what we’ve got, and what we’ve got is often ugly and terrible.

In any case, all of this has me thinking a great deal. A lot of people are spouting off on Twitter angrily (or joyfully) about the Supreme Court’s impending ruling overturning Roe v Wade¹, the law of the land for half a century that radically liberalized abortion law across the nation. I am trying not to tweet about it and instead sit with the implications of it for a while. Do some reading.

Roe has been under attack in red states for years, and we’ve reached the apogee of that concerted assault, which has taken place in courtrooms and legislative bodies and on the streets and outside clinics and in churches for decades now. Anyone with eyes to see knew this was coming the moment Donald Trump was able to confirm a sixth conservative judge to the Supreme Court. When it was five, Chief Justice John Roberts could be counted on as a reliable swing vote (and, true to form, he is not part of the five voting to overturn the law despite his conservatism).

Democracy Vs The Court

Glenn Greenwald has a very smart piece on the liberal reaction to all of this that I want to riff off of a little bit. He notes that a lot of the liberal backlash right now is framed in terms of democracy vs the SCOTUS. The argument goes that somehow these “five unelected officials” are flying in the face of democracy by overturning Roe v Wade and that this is deeply terrible because of how undemocratic it is.

As bummed out as we may be by this decision, it is actually not undemocratic at all. As Greenwald notes, Roe v Wade was deeply undemocratic. The law took the power away from voters in states across the nation and, in one fell swoop, made abortion legal on the federal level whether or not voters or states agreed. The entire point of the court is to settle the kinds of issues where rights—whether of individuals, states, majorities, minorities etc.—come into conflict with one another. Sometimes this means overruling majorities and curtailing democracy.

Here’s Greenwald:

Alito's decision, if it becomes the Court's ruling, would not itself ban abortions. It would instead lift the judicial prohibition on the ability of states to enact laws restricting or banning abortions. In other words, it would take this highly controversial question of abortion and remove it from the Court's purview and restore it to federal and state legislatures to decide it. One cannot defend Roe by invoking the values of democracy or majoritarian will. Roe was the classic case of a Supreme Court ruling that denied the right of majorities to decide what laws should govern their lives and their society.

One can defend Roe only by explicitly defending anti-majoritarian and anti-democratic values: namely, that the abortion question should be decided by a panel of unelected judges, not by the people or their elected representatives.

In the case of Roe v Wade, the court curtailed the democratic will of the majority in order to protect the individual reproductive rights of women. In overturning the law, Justice Alito (who wrote the opinion) argues, ironically, pretty much exactly same thing as his liberal detractors.

Greenwald quotes this passage from Alito:

Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade….At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision Court represented the “exercise of raw judicial power,” 410 U. S., at 222….

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences…..It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U.S. at 979 (Scalia, J, concurring in the judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.

As Greenwald notes, both Alito and his detractors are using the same basic logic that Abraham Lincoln espoused with regards to the court:

Waleed Shahid @_waleedshahid

Abraham Lincoln’s inaugural address: “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers.”

Was Roe v Wade a Mistake?

All of this has gotten me thinking about the original court decision in 1973 and how it so drastically changed the political landscape, galvanizing a conservative movement that, in many ways, was on the verge of collapse in the early 1970s’.

Before Roe v Wade there was nothing even remotely like what we call the Religious Right. The anti-abortion activists were largely Catholics, many of whom would protest the Vietnam War one day and abortion the next. In the 1970s, evangelicals were not really concerned with abortion, seeing it largely as a Catholic issue. The Southern Baptist Convention even passed several resolutions in the 70s’ affirming women’s rights to receive abortions.

The one-two punch of desegregation and Roe v Wade created what became the conservative movement we’re now confronted with. An increasingly revanchist conservative movement in the South quickly caught on across the nation, first ignited by racial issues, but quick to latch onto more sympathetic causes as segregation fell out of favor. Abortion is unpopular enough and controversial enough that it became a perfect rallying cry for conservatives of all stripes including evangelicals. Alongside lower taxes, smaller government and national defense, abortion became a pillar of modern conservatism (a more modern addition to these pillars is ‘own teh libs’ which may end up being the end-game for the right).

By the time Ronald Reagan was elected president, he had abandoned his earlier, more liberal attitude to abortion² and used anti-abortion sentiment (and his natural charm) to win the White House in a landslide. The Moral Majority was born, casting off the racist shackles of the desegregation movement and adopting a shiny new platform that was less overtly racist and much more concerned with the life of unborn children.³

For the next few decades, abortion has been at the heart of the conservative movement. Overturning Roe v Wade has been one of the strongest driving forces in Republican electoral efforts. Countless voters swallowed their dislike of Trump—a man many saw as anything but conservative, let alone Christian—and voted because of one issue and one issue only. Single-issue voters exist over a number of topics, but few with the same passion or commitment as the anti-abortion movement.

This is what democracy looks like. I hate to tell you, but it’s the truth. It sucks that women’s reproductive rights are being taken away, but that was always the problem with Roe v Wade. It was an anti-democratic decision handed down from on high by unelected, appointed-for-life judges, overturning the will of the people. The Supreme Court is simply undoing that now—but now, anti-abortion sentiment is much more fierce and widespread than it was in 1973.

What would have happened in an alternate timeline? Of course, it’s impossible to say. But it’s not out of the realm of possibility that a slower, less radical shift would have resulted in a less vibrant conservative movement. If states had, one by one, liberalized abortion laws on their own terms then maybe abortion never would have become an issue outside of the staunchest Catholic resistance.

Granted, slow change sucks sometimes. It would have meant more women not having access to the healthcare they needed for longer. But we have to balance the value of change with the sustainability of that change. Think in terms of pure chemistry. An explosive is simply a chemical change that happens extremely fast. There’s no value judgment here. The reality is simply that extremely fast change can be destructive even when it’s well-intended, whereas slower, more deliberate change can have more lasting impact. I know I probably sound a little Burkean typing that out, but I don’t think it’s wrong and I think the SCOTUS decision is proof of how fragile this kind of progress can be.

Another example: Gay marriage. Had the Supreme Court legalized gay marriage in 1969 after the Stonewall Riots or something, would the law have sparked conservative backlash that might have had deleterious effects on the gay rights movement? One of the great strengths of that movement was its persistence over time, winning hearts and minds across the culture before scoring its biggest legal victory.⁴

I realize this is something of a counterfactual, but now seems like a reasonable time to engage in such thought experiments. Roe v Wade may have seemed like an inevitability to many, like such an old piece of American law that we’d never really have to worry about it, but I was raised going to pro-life marches and I’ve always known how passionate the anti-abortion movement is. To me, it’s always felt more like a waiting game. All the right needed was five judges, with no swing voters in their midst, to toss the law into the fire. Here we are. You should have seen it coming.

What would lasting change look like? The slow adoption of more liberal abortion laws at a state level followed eventually by a constitutional amendment at the federal level (perhaps). Without this issue becoming such a major national call to arms, it’s possible that by now abortion would be relatively accessible and not all that controversial simply through the organic—if plodding and meandering—process of actual democracy. It’s possible that I’m wrong about that, but I wonder.

Justice Harry Blackmun wrote the opinion for Roe and in it, countered the state of Texas’s claim that life begins at conception, noting: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man's knowledge, is not in a position to speculate as to the answer.”

But then one has to wonder, if it’s not the business of the court to determine when life begins, should it be the business of the court to determine whether abortion should be legal or not in the first place? Again, I write this as someone who supports access to abortion and a woman’s right to choose—and as someone who has a hard time reconciling the notion that life doesn’t begin at conception. Biologically, there is simply no arguing with the fact that life does, in fact, include fetuses. But I think that, on net, Roe granted millions of women more basic fundamental human rights and so I support it—my questions here are more along the lines of unintended consequences.

Perhaps in the democratic process toward more liberal abortion laws, Americans would have agreed on something less radical than Roe v Wade but also less radical than what Texas wanted in 1973—legal abortion only when a woman’s life was in danger. Perhaps we would have cobbled something together similar to other advanced nations, where abortions were legal for roughly the same time period in which most miscarriages occur 12 to 16 weeks or thereabouts. And maybe that’s still not good enough, but that’s democracy. We can’t let the perfect be the enemy of the good. All I’m saying is Roe did change hearts and minds, creating a new anti-abortion movement that didn’t exist beforehand. Maybe that was the wrong way to go about changing hearts and minds.

Lots to think about. So much turmoil and chaos and change over the past few years, it’s pretty overwhelming at times. Trump, the pandemic, the war in Ukraine, the terrifying specter of inflation, now this. I would really like it if we could all just calm the hell down and return to something a little less horrible for awhile. I want everything to just be boring, ok? Can we just go back to 1995 and Groundhog Day the crap out of it? No cell phones, no Twitter, no 9/11, no War On Terror.

Then again, no gay marriage, no legal weed, no Elden Ring. Whatever, I’m just ready for things to settle down and for everyone to stop being so damn worked up all the time over everything. Take it away Bo Burnham.

Thanks for reading. Be sure to subscribe and please let me know your thoughts on all of this. I don’t think we need to get into a big debate about whether or not abortion is right or wrong. I’m more curious to hear your thoughts on democracy and change and the court’s role in society.

1. Some people are very angry that Ruth Bader Ginsberg didn’t retire during the Obama presidency when she could have been reliably replaced with a liberal justice instead of passing away during Trump’s presidency and being replaced by Amy Coney Barrett. Others are very angry at people who are angry at RBG and prefer to cast their scorn at right-wingers and, worse, anyone who didn’t vote for Hillary. Leftists who supported more left-leaning candidates and moderates who maybe sat the whole thing out. Granted, I think voting for Hillary was probably worth it solely based on the composition of the court, but I don’t blame anyone who didn’t vote for her or who rightly notes that, had RBG retired sooner, we would not be in this predicament. Lots of people can be ‘to blame’ here, for all the good it will do us in the end.

2. In 1967 Reagan signed the Therapeutic Abortion Act which essentially legalized abortion in California. That same year he authorized a major tax hike. By the 80s he whistled a different tune—though still far less radical than Republicans of the modern era.

3. Don’t get me wrong, there’s still plenty of racism out there and lots of rightwing policies have racist undertones. I’m just saying that in terms of optics, abortion is a much easier selling point to moderates and Christians than ‘keep the blacks out of our schools’. Being “tough on crime” and passing laws that disproportionately impact minority voters is also a form racism takes, but the optics are always all about ‘law and order’ so…

4. I often bring this up as a contrary example to the current trans movement, which seems to want to win every victory it can except hearts and minds, which I find rather like putting the cart before the horse.