The End of Roe and the Curse of Self-Governance

By Noah Rothman

Friday, June 24, 2022

 

“Abortion presents a profound moral question,” reads the Supreme Court’s momentous decision overruling the precedents that prevented states from passing restrictive abortion laws. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority.”

 

That is inarguable. It was, in fact, one of the late Justice Ruth Bader Ginsburg’s primary sources of frustration with the precedents established by the Court’s decision in Roe v. Wade. By invalidating anti-abortion laws in dozens of states, the decision arrested the process of establishing a durable legal equilibrium that experimentation among the states produces. This is also one of the reasons that Roe proved so durable over the last 50 years despite its indefensibly dubious legal rationale.

 

That process of experimentation begins again today, and it will be messy. It’s going to be downright icky, in fact. The legal bulwark that took the question of abortion out of the hands of lawmakers also freed the voting public from consequences associated with their views. For a half-century, voters and their representatives could enjoy the courage of their convictions on abortion without the associated repercussions. No longer. Americans will once again be compelled to think about, talk about, and legislate on the issue of abortion.

 

“The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated,” the Court’s decision continues, adding, “the authority to regulate abortion is returned to the people and their elected representatives.” We can expect the states to do precisely that. There will be a burst of enthusiasm both for and against abortion rights at the state level. Their respective legislatures will test the parameters of this new legal environment. Maximalists on both sides of the issue are likely to push their representatives, many of whom are most responsive to maximalists on every issue, to say and do things that will make most everyone else squeamish.

 

Quite unlike engaged partisans, most Americans are conflicted when it comes to abortion. Polls have consistently shown that the vast majority of American adults did not want to see Roe overturned. Even if you’re inclined to parse that language, it’s a finding that suggests between six- and seven-in-ten Americans do not want abortion to be illegal in most or all cases. That doesn’t mean they’re comfortable with the practice.

 

Those same polls find that majorities prefer to see restrictions on elective abortions roughly after the 14th week of pregnancy. These views are informed as much by the public’s understanding of law as their religious and moral views, and they tend to be reinforced by personal experience with the practice. These views may not sound well-reasoned to partisans who spend a lot of time thinking about abortion, but that’s the problem. Most Americans do not spend a lot of time thinking about abortion.

 

“Americans’ convictions on abortion, we learned, encounter inconvenient exceptions and questions with neither clear answers nor venues to sort through them,” read a recent TIME magazine spread featuring the voices of “hundreds” of Americans on the issue. “Attitudinal complexity leaves many Americans feeling sidelined and displaced for their abortion views: ill-fitting in the Democrat and Republican parties, imperfectly aligned within religious traditions, unwilling to join activist movements that don’t readily invite equivocation or gradation.” Because they perceive themselves to be so out of step with the loudest voices in the room, these Americans keep their views to themselves. And while Roe was the law of the land, they didn’t have to think—much less talk—much about abortion.

 

That’s all over now. American politicians who cater to the minority of voters who are utterly unconflicted when it comes to abortion rights will have to act on their preferences. Some states will enact restrictions on the practice that functionally ban it. Others will loosen their abortion laws, perhaps allowing mothers to electively terminate a pregnancy in its final stages. These extremes will profoundly discomfit the majority of Americans who previously enjoyed the luxury of not having to think about any of this.

 

Of course, that is what the justices who crafted and joined this decision explicitly intended. Pro-abortion activists who insist that their voices have been silenced by this decision have it precisely backward. They have been liberated to pursue their visions for social organization, as have their opponents. What Americans do with this new liberty matters more now than it has for decades. The Court has compelled the millions of Americans who sat on the sidelines over the last 50 years to get in the game, whether they want to or not.

 

The voting public may bitterly resent being drafted into the process of self-determination, especially since the subject matter at issue is unsettling. The process will produce winners and losers. Competition among the states to satisfy their constituents on this matter will be fraught and will contribute to social tensions. But it will also contribute to the establishment of the sort of national equilibrium on the issue Justice Ginsburg envisioned. That is how our system functions and why it endures.

 

The miracle of American self-governance is a blessing and a curse. On this aspect of the social contract, the nation’s voters outsourced their sovereignty to the courts for too long. That’s over now. And maybe, in the end, it will be for the best.