“The Roe Effect” is a hypothesis. It’s an attempt to assess the 2022 SCOTUS reversal of Roe v. Wade. It includes the related question of the political fallout SCOTUS might anticipate by ignoring its 70-year-old precedent that abortion is a protected civil right. SCOTUS leashed the dogs of political and religious war on abortion. The phrase was coined by James Taranto of The Wall Street Journal in Best of the Web Today.
Mr. Taranto said, “Roe v. Wade is a study in unanticipated consequences. By establishing a constitutional right to abortion, the justices of the U.S. Supreme Court no doubt thought they were settling the issue for good, accelerating a process of liberalization that was already under way in 1973. But instead of consensus, the result was polarization. The issue of abortion soon after, and for the first time, took a prominent place in national political campaigns. By 1980, both major political parties had adopted extreme positions–Republicans favoring a ‘pro-life’ constitutional amendment to ban abortion, and Democrats opposing virtually all regulation on ‘pro-choice’ grounds. Every presidential and vice-presidential nominee since then has toed the party line on abortion. Polarization over abortion coincided with a period of Republican ascendancy. Since the parties split on abortion, the GOP has won five of seven presidential elections, and no Democrat has had a majority of the popular vote. Republicans took over the Senate in 1980, and both houses of Congress in 1994. Obviously, many other factors have contributed to Republican success, but it is hard to look at these results and conclude that abortion has been a winning issue for the Democrats. Thus, the politics of abortion has favored the party that opposes the court-imposed ‘consensus.’”
SCOTUS may have not anticipated that its political leanings would cause seismic consequences in every household in America, but that is how political consequences work. The Roe Effect dictates that states, political parties, and households choose up sides. “Those who favor legal abortion are much more likely to have the procedure than those who oppose it. Children usually follow their parents’ political leanings. Therefore, pro-abortion rights parents will have more abortions and, hence, fewer children. Therefore, the pro-abortion rights population gradually shrinks in proportion to the anti-abortion population. Therefore, support for legal abortions will decline over time.”
The Dobbs decision to “allow” the states to decide whether abortion is legal within their borders is tragically being compared to three other pivotal legal decisions. Historians are comparing other civil rights cases to Dobbs and assessing how The Roe Effect might politically impact the 2022 midterm elections. “The only case similar to Dobbs, in that it would have a major political impact on an election, is Dred Scott v. Sanford, 1857. It was followed in 1860 with the destruction of the Democratic Party and the election of a president from a party that did not exist a few years before. The Dred Scott case was a policy victory for the party in power. That might turn out to be true for the Dobbs case.
The Roe Effect includes a reality not anticipated by SCOTUS. “After the Supreme Court’s radical draft opinion revoking Roe v. Wade was released, headline writers opined that it would deepen America’s divide. In fact, we are relatively united on the key point at issue here: Americans overwhelmingly want Roe to remain what Justice Neil Gorsuch called ‘he law of the land.’ Few support overruling it. On average, the last five Fox News Polls say 63 percent of Americans want to let Roe v. Wade stand, while only a relatively small 28 percent believe the Supreme Court should overturn it. The last several ABC/Washington Post polls reached the same conclusion, as did a recent series of Quinnipiac polls which found 64 percent agreeing with Roe and just 28 percent disagreeing with the court’s holding in the case.”
Vox headlined The Roe Effect. “Think Polarization Is Bad Now? Wait Till the Post-Roe Abortion Wars Get Started.” The subtitle said Dobbs is the next stress test for America’s teetering democracy. They blame Justice Alito. “In his decision overturning Roe v. Wade and Planned Parenthood v. Casey, Justice Samuel Alito argues that the rulings that had protected abortion rights were not only poorly reasoned but actively harmful to American democracy. Far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
At least one commentator thinks The Roe Effect will boomerang. “Millions of Americans are unhappy, even furious at the US Supreme Court for reversing its 1973 abortion-rights precedent Roe v. Wade last month. There is more talk of a political backlash against the high court than at any time since the era of massive resistance to its school desegregation rulings in the 1950s. Representative Alexandria Ocasio-Cortez, the Bronx Democrat, suggests that the justices need more checks and balances. Senator Ed Markey, the Massachusetts Democrat, says the latest abortion decision, Dobbs v. Jackson Women’s Health Organization, justifies expanding the court to let President Joe Biden pack it. Other critics of the justices are calling for term limits on them. Still others are issuing sorrowful warnings that the court is losing its ‘legitimacy.’ But the conservative justices don’t need to worry that their decision in Dobbs will prove self-defeating. It’s the progressive reaction to the court that has a greater chance of backfiring. That reaction fails to take seriously a key structural feature of Dobbs, which is that the court has relinquished authority over abortion policy rather than claimed it. There is not much that other political actors can do to make the courts exercise a power they do not want.”
It is yet to be seen whether The Roe Effect will blossom into full partisan mode at SCOTUS. Justice Alito’s harsh criticism of Roe may be limited. That said, there are other cases decided on similar grounds to Roe—Obergefell (same-sex marriage), Lawrence (same-sex sexual conduct), and Griswold (contraceptives)—and whether the overturning of Roe presents a similar fate for these decisions.
“The majority opinion in Dobbs, authored by Justice Alito, rejects the argument that these other precedents are at risk by the Dobbs decision. Justice Alito argues that abortion is fundamentally different than marriage, intimacy, or procreation because it deals with ‘potential life,’ and therefore ‘nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’ On the other hand, Justice Thomas, in his concurring opinion, states that ‘in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous’ . . . we have a duty to ‘correct the error’ established in those precedents.’ The dissenting opinion of Justices Breyer, Sotomayor, and Kagan offer a much more heightened concern for the fate of these precedents. The dissenting justices argue that the basis for overturning Roe—that ‘the right to elect an abortion is not ‘deeply rooted in history’—can theoretically be applied to the use of contraceptives, same-sex marriage, and private intimacy.”
If nothing else is clear about Roe v Wade’s fate now that SCOTUS has eviscerated it, the moral considerations on abortion have not budged. “Relatively few Americans view the morality of abortion in stark terms: Overall, just 7% of all U.S. adults say abortion is morally acceptable in all cases, and 13% say it is morally wrong in all cases. A third say that abortion is morally wrong in most cases, while about a quarter (24%) say it is morally acceptable most of the time. About an additional one-in-five do not consider abortion a moral issue.”
What has budged is the 70-year-old political party switch. By and large Republicans say abortion is morally wrong—48%. Only 29% of Democrats say it’s morally wrong. Fact is people’s views about the morality of abortion coincide with whether they think it is illegal. “Across both political parties and all major Christian subgroups – including Republicans and White evangelicals – there are substantially more people who say that there are situations where abortion should still be legal despite being morally wrong than there are who say that abortion should always be illegal when it is morally wrong.” These data points explain the disparity of the six justices who overturned Roe v Wade. Six said it was not a protected constitutional right and therefore illegal. Three said it was still a constitutional right and therefore legal. That contrasts with the Pew Center’s data findings confirming that roughly half of all Americans think there are situations where abortion is morally wrong but should still be legal.
The difference is not legality or even political party preference—the difference is religion. That explains the Dobbs decision’s reversal of Roe. It does not explain or confirm The Roe Effect.
I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. Read my bio.
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