If Roe Falls

With the retirement of Supreme Court Justice O'Connor and the nomination of John Roberts to replace her, everyone seems to be talking about the likelihood of Roe v. Wade being overturned. Now, let me emphasize, although we've replaced one Roe supporter with a likely Roe opponent, we're not there yet. We still need to replace one more pro-Roe justice. The best candidate is probably Justice Stevens, who is 85 and in increasingly poor health. However, the consensus is that unless he's virtually on the point of death, Stevens will not retire while Bush is president, hoping that a Democrat will be elected in 2008.

There is also little agreement on what the political fallout of such an overturn would be. In a Boston Globe article written right after the '04 election, Drake Bennett argued that this is in fact not the Democrats' greatest fear, but the Republicans', since it would result in a huge backlash against Republicans on a nationwide level.

Perhaps just because I disagree with Bennett on the moral issue in question, perhaps because I have a different social context in which to form my opinions regarding the likely cultural fallout of such a decision, I suspect that the result would in fact be the de facto fragmentation of both parties, and that this might in fact be a very good thing.

Say it's spring of 2008 and a significantly re-staffed Supreme Court has thrown Roe v. Wade out as an unacceptable reading-into-the-law on the part of Justices Blackmun and Co. (In all reality, it would doubtless take a while to get an appropriate case on the issue through the pipeline and before the court, but moving it up to before the 2008 election allows us to work with an essentially familiar electoral landscape rather than making tenuous assumptions about which party is likely to control the presidency and congress more than four years hence.)

The result would, of course, not be that abortion would immediately become illegal at a national level (nor that woman would have to wear burkas, though if Maureen Dowd would like to begin now anyway I'm all for it). Rather, regulation of abortion would fall into the hands of the congress and of the individual state legislatures. Should this occur during Bush's second term, I would imagine the president would give an address in his "uniter not divider" mode in which he would say essentially:

"My fellow Americans, today is a historic day, because today the highest court in the land has reaffirmed a principle which all free people must hold dear: the principle that in a democracy such as ours, the power to make law lies not in the whims of activist judges, but rather in our congress and our state legislatures and in the people of this great land. Today is a day of celebration for some, but it is a day of responsibility for all. Starting today we must come together as Americans to make sure that every woman is treated with dignity and that every child that is brought into the world is welcomed."

Then expect the president to roll out a proposal for a high visibility "compassionate conservative" program to provide assistance to women in problem pregnancies. Hard-core economic conservatives will denounce it as yet another example of Bush's fiscal irresponsibility and equally hard-core liberals will denounce it both as theocratic social engineering and as a tragically under-funded scam that would have worked if only they had had the idea first.

In the following days, strong pro-choice senators will field a "Right to Choose" amendment while strong pro-life senators will field a "Sanctity of Life" amendment, but it will be clear that neither has the votes to progress beyond debate and get an up or down vote, much less pass.

At this point, things move down to the state level, and this is where things get interesting. Sources differ on how many states would likely ban abortion in almost all circumstances, perhaps depending on whether they're trying to be factual or trying to scare the pro-choice constituency into providing more donations. The Center for Reproductive Rights estimates that 30 states would ban abortion. NARAL estimates only 12 would. No matter how you look at it, a number of "red" states would clearly pass severe restrictions during the first few years following Roe's downfall. At the same time, a number of "blue" states would doubtless pass state constitutional amendments or state legislation specifically protecting or even expanding abortion access beyond current federal levels.

The first 5-10 years after the overturn of Roe would be very interesting times from a political discourse point of view. Because the 1973 decision was made by judicial fiat, politicians and voters have not had to publicly think through and debate their positions to any great extent. Furthermore, abortion issues strike a very deep chord with both proponents and opponents. It's likely that as the country divided into life states and choice states, a great many people would make decisions about where to live at least partially for ideological reasons. (This already happens to a great extent. Real estate prices aside, one of the reasons I picked Texas as a new home was that I was tired of California's political climate, and friends of mine who moved from California to Arizona, Nevada and Colorado cited similar concerns.) It's likely that both pro-life and pro-choice states would become more extreme in their views.

This brings up an interesting question in regards to the national parties. It's already true that "red" sates often field pro-life Democrats while "blue" states field pro-choice Republicans. However, when abortion policy is being decided at the legislative rather than the judicial level, will parties continue to allow dissent from the party platform, and how severe will infighting become within specific regions?

In "blue" states, I imagine that pro-choice Republicans would become bolder, and would eventually alienate local pro-life Republican minorities so much that a split would become likely. Since the national electoral center of gravity for Republicans will definitely be in the "red" pro-life states, it's likely that the minority pro-life faction would remain affiliated with the national party while the pro-choice, blue-state Republicans would split off. Let's call them the Libertarian-Federalist Party.

In the "red" states, where pro-choice Democrats would stand little chance, we could expect a resurgence of pro-life progressives; let's call them the Christian Democratic Party (though I do so at my peril as I know little of the similarly named parties in Europe). Each of these parties would in turn find willing constituents in states of the other color, as many traditionally Democratic demographics in "blue" states would be happy to vote Christian Democrat and certain "business is best" types in "red" states would be happy to vote Libertarian-Federalist.

Congress would become a four-way tie of sorts, while the presidency would be truly up for grabs in a way it hasn't been in over a hundred years. More than anything else, the splitting would do wonders for political discourse and involvement as politicians were forces to argue their principles and convince voters who had other options.

Will it happen that way? One can only wait and see...