Without Roe, Nobody ‘Dictates’ Abortion Policy

By Kevin D. Williamson

Sunday, May 08, 2022

 

For various reasons, many journalists and so-called journalists have written many columns about my views on abortion. But the only one of them to ever bother asking me about my views on abortion has been Jane Coaston. We recently had a short email exchange on the question, which she mentions in the New York Times. She writes:

 

In response to an email, Williamson told me, “Returning abortion policy to the democratic theater does not empower the pro-life movement to dictate abortion policy — nor should we want it to.”

 

But have no doubt that the people who oppose abortion will, in fact, be dictating abortion policy in dozens of states . . . .

 

Coaston is one of the many writers on this subject who, for whatever reason, keeps missing one of the central points: In a post-Roe world, nobody gets to dictate abortion policy to anybody — rather, abortion policy will be decided by democratically elected lawmakers. That is not dictatorship, but democracy. The importance of that point should be easily understood by all intelligent observers, including those of our friends and neighbors who support abortion rights. It is wrong to treat laws enacted by democratically enacted lawmakers as equivalent to the undemocratic settlement we currently have. It is also wrong to fail to acknowledge that this is a big part of what is being disputed.

 

There are really two separate issues in play here: One is the particular question of abortion, which is indirectly implicated in the Dobbs case (indirectly because throwing out Roe would provide no guidance at all on what abortion legislation should actually look like) and the independent issue of the Supreme Court’s longstanding habit of making social policy far in excess of its legitimate constitutional scope — a bad habit that is, I hope, about to be very much curtailed. It is in the interest of pro-abortion political activists and their media allies to conflate these issues, but they are not the same issue.

 

Another way of saying this is that a Supreme Court decision imposing a national ban on abortion would be just as illegitimate as Roe — a fact that pro-lifers are more inclined to appreciate because of the very fact that our ability to effect change as citizens through regular democratic channels has been illegitimately held hostage by the Supreme Court for half a century. Getting the Supreme Court back inside its constitutional limits is an important political task that is separate from the question of whether pro-lifers will get their way on abortion or won’t.

 

Coaston asked me about my belief that under a post-Roe legal order the United States is going to look approximately like France rather than The Handmaid’s Tale. In fact, France’s current abortion law restricts the procedure one week earlier in pregnancy than the Mississippi statute would, at 14 weeks rather than 15.

 

Here is my full response:

 

This is Civics 101. If you want to make a fundamental change to social policy and you want your new policy to be effective and durable, then you need real consensus and democratic buy-in. Consensus is why marijuana reform has had some success while most health-care and climate-reform schemes have been failures. While there surely will be some diversity among the states—we have 50 states for a reason—I expect that in the near term U.S. abortion policy will land about where Western European abortion policy is, because that is where public opinion is. Most Americans take a pretty liberal view of abortion in the first trimester, an increasingly skeptical view thereafter, and support certain exceptions to restrictions—i.e., they are about where George W Bush was, and very far from where the Roe regime is.

 

Our pro-abortion friends have forgotten how to engage in persuasion and why that it important because for half a century they have been able to misuse the Supreme Court to unconstitutionally and undemocratically dictate abortion policy to the rest of the country. Returning abortion policy to the democratic theater does not empower the pro-life movement to dictate abortion policy—nor should we want it to. It only gives us the opportunity to engage in persuasion. I wish the median American had a less savage and more humane view of abortion, and I trust that with time and diligence this will be the case. But every time some activist bitches about the “intransigence” or even “sabotage” of the other side, it is just one of 10,000 equally stupid and cowardly ways of saying, “We have not been successful in persuading our fellow citizens of the wisdom of our views.” I don’t want to see the pro-life movement replicate the mistakes of the pro-abortion movement.

 

As I have written 1,000 times before, overturning Roe is not the end of the fight over abortion but the beginning. And pro-lifers need to get it into our heads that there is no real way to win on this issue without convincing a politically dispositive majority of Americans that ours is the correct position. As I see it, we are at best about halfway there.