A Post-Roe America

[ Posted Wednesday, December 1st, 2021 – 16:25 UTC ]

Today the Supreme Court heard oral arguments in a case involving a new law in Mississippi which bans abortions after the first 15 weeks of pregnancy (more technically: 15 weeks from the woman's last menstrual cycle). This law was enacted as a direct challenge to Roe v. Wade, the Supreme Court case which legalized abortion in this country. And after the arguments were heard the only real question most observers had was whether the court will overturn Roe outright, or just gut it so completely that it will become all but meaningless (as they did earlier to the Voting Rights Act). Either way, it seems we need to start contemplating what a post-Roe country will look like.

Chief Justice John Roberts probably would prefer to leave Roe nominally in place while allowing individual states to severely undercut it. But he may not even have this choice, since there are five other conservative justices on the court. If the five of them decide to overturn Roe completely, Roberts really has no say in the matter. But whether some shred of Roe is retained as a legal fig leaf or not, life is about to change for tens of millions of women.

Others today have been examining what a post-Roe America will look like, as a woman's right to fundamental health care decisions will depend entirely on what state she lives in. At least half the states will either entirely ban abortion or restrict it so severely that there will be a de facto ban. Other states will enact abortion rights legislation, leading to a checkerboard of fundamental rights across the land. Many states already have such laws on the books, just sitting around waiting for Roe to be overturned. That is going to be an incredible change in this country, but it's not what I'm going to examine today. Instead, I am concentrating on the political ramifications of any Supreme Court decision which guts or overturns Roe v. Wade.

This decision will likely not be announced until next June. This will interject the subject straight into the midterm congressional races in a big way, and to a lesser degree into statewide contests for governors and state legislatures. There is only one obvious recourse to the court striking down Roe, which would be to enact the right to an abortion into federal law.

The Democratic Party certainly bears some of the blame for the situation we now find ourselves in. Nothing stood in the way of them acting long before now to enshrine the right Roe had identified into actual law. Democrats did not do so, for half a century. They were content with relying on the courts to define the right as they saw fit.

There were political reasons for doing so, of course. The anti-abortion movement really got going in a big way in the 1980s, under Ronald Reagan. Groups like the Moral Majority were intent on injecting religion into government and the law. They had some victories and some disappointments, but on the subject of abortion they were forced into playing a very long game. Instead of directly attacking Roe, they occupied themselves with getting anti-choice legislators elected at the state level in as many states as they could -- and that included plenty of anti-choice Democrats, it bears mentioning. They worked to elect anti-choice governors and get as many reliably-conservative judges into place as they could. This effort also took place on the national level, and was put into overdrive during Donald Trump's term in office (since by then the filibuster wasn't allowed for judicial appointments). Their crowning victory was to pack the Supreme Court with at least five (and perhaps six) jurists who believed that Roe v. Wade should be overturned.

During this generations-long campaign, the issue of abortion was used by anti-choice Republicans as a political bludgeon against Democrats. And back in the 1980s, there were still plenty of Democratic politicians either still on the fence or completely anti-choice. So it was a fight between two wings of the party, with most Republicans throwing their weight to the anti-choice side (it must be admitted that at the time, pro-choice Republicans did actually exist too, but their ranks dwindled over the years).

Even after the sorting was complete and the issue truly became a partisan issue (rather than an issue that had two factions inside of each party), it was still a much more potent issue for Republicans. Republican voters cared a lot more about ending abortion, and they voted accordingly. Democratic voters (and Democratic politicians) were rather complacent on the whole issue, since they considered Roe to be settled law that would remain untouched -- without them having to do anything about it. That is all about to change.

This Democratic complacency was the major reason why Democrats -- even when they controlled both chambers of Congress and the White House -- did nothing to solve the problem legislatively. They never passed an Abortion Rights Act (or Freedom Of Choice Act, more like) that would have taken the issue of the right to an abortion away from the Supreme Court's whims. Doing so would have been politically risky (this is what Democrats calculated, at any rate), so it was seen as safer to just trust the courts.

Women across America are going to pay the price for this complacency and dereliction of legislative duty. But perhaps not for too long (one would like to hope, at any rate). Overturning Roe or even completely gutting its provisions is going to put the issue front and center of the midterm campaign. It is going to cause a backlash across the country from outraged women (and outraged men who fully support women's rights). Perhaps this outrage will be limited to a few marches and demonstrations, but it could also lead to a newfound surge of Democratic voter support.

Democrats are finally going to have to act -- or at least promise such action to the voters. A bill will have to be introduced and rallied around in Congress (which will still be in Democratic control next June, barring unforeseen circumstances). If Senators Joe Manchin and Kyrsten Sinema continue to block the abolition of the filibuster, then this bill will fail to pass in the Senate (no Republican is going to vote for it, one assumes, and even if that assumption proves to be wrong there certainly won't be 10 of them willing to do so). If they can't even get voting rights passed, who really thinks they'll be able to pass an abortion rights bill?

This means the only way to secure the nationwide right to an abortion will be to elect enough Democrats to both the House and Senate that the holdouts won't even matter anymore. If Democrats pick up two Senate seats, then they could feel free to ignore any protest from Manchin and Sinema, to put this another way.

This is going to be a very tall order, however. Even before abortion entered as a big 2022 election issue, Democrats were quite likely to lose at least the House to Republican control. Even the addition of abortion to the campaign isn't going to change the gerrymandering currently underway, which will give the GOP a decided advantage next November.

But no one now knows how potent a political issue this will be. Will it cause a few loud marches and demonstrations, or will it actually motivate millions of Democratic and independent voters to get out and vote next year? It is impossible to say. We have seen the effectiveness of using abortion as motivation in voter drives on the other side of the question, but never have we seen the issue become so critical to the liberal side. Which is why no one can now accurately predict what it will all mean when the votes are actually counted.

Democrats haven't historically been very good at championing single issues, but on this one they may be forced into it by outraged voters. The people may demand a much stronger stance from Democrats than they have previously taken. If Democrats don't capitalize on the potency of the issue, then the opposite could happen as well -- voters getting so demoralized by the spinelessness or ineptitude of Democrats that they throw up their hands and conclude: "Why bother even voting, if the Democrats can't deliver?"

It could go either way, in other words. But one thing seems fairly certain at this point: the right to an abortion is going to be crucially important as a political issue next summer and fall. So much so that it could even become the dominant issue and shove most of what politicians are now worrying about to the side. The Supreme Court seems likely to completely undercut American women's right to choose their own family planning. Meaning the era of Democratic complacency over the issue will be at an end, one way or another.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


10 Comments on “A Post-Roe America”

  1. [1] 
    andygaus wrote:

    Even voters who are against abortion in most circumstances don't think a woman should have to bear a child by a man who raped her. Pointing out that Republicans are on the rapist's side will turn even moderate voters against them.

  2. [2] 
    John M from Ct. wrote:

    You don't mention the other possible reaction to an overthrow of Roe v. Wade by this packed conservative Court: a more active movement by Democratic voters and politicians to reform the Supreme Court by term limits, enlarging the bench, or both.

  3. [3] 
    nypoet22 wrote:

    i wonder if there will be a great migration, of women from post-roe states to states that permit them to exercise their rights.

  4. [4] 
    John M from Ct. wrote:

    Andygaus on [1]
    If I understand it correctly, the anti-abortion Republicans have a slogan for that one already: "Punish the rapist, not the rapist's innocent child."
    I have a hard time not gagging at this point, but the fantasy that there is a group of moderate voters who can be turned against the Republicans by reasonable arguments about women's rights is, in fact, a fantasy. People have pretty much made up their minds on this issue; which side is the stronger is what a Roe-reversal may reveal.

  5. [5] 
    TheStig wrote:

    The US Constitution is showing its age and the infirmities of age. Small states with more power per voter are easily taken over by corporate interests and the just plain wealthy. This is a reversion to our planter roots….which were not exactly egalitarian. As a practical matter, large states may decide it makes sense to Balkanize…or at least threaten to do so in order to get better terms. Any US state with a coastline is potentially viable as an independent nation. All others - no so much.

    It’s been a while since I’ve had a good rant! :)

  6. [6] 
    TheStig wrote:
  7. [7] 
    C. R. Stucki wrote:

    There are actually several questions relative to the creation and destruction of human beings that nobody ever even asks. For example, who has the right to create new humans, and who doesn't? Who has the right to destroy new humans? Who does NOT have the right to destroy new humans? Who has the right to define what a new humans is, or is not?

  8. [8] 
    MtnCaddy wrote:


    See Don, you have a good sense of humor -- to those of us that don't automatically scroll through your posts. This suggests that you have intelligence.

    So I don't understand:

    Why are you flogging such a stupid concept as OD?

    Why are you so utterly ineffective in your efforts?

    Why don't you understand how to interact with both CW and us Weigantians? You know, the people you appear to be trying to convince?

    I wish you'd stick to the political humor and lose the OD shtick.

  9. [9] 
    TheStig wrote:


    What the Hell are you talking about?! All the questions you pose have been asked since the dawn of writing…and almost certainly for hundreds of thousands of years of oral tradition before that. To put it mildly, there are a multitude of opinions..consult your local government, clergy or the person drinking next to you at a local bar for what is likely to get you into trouble.

  10. [10] 
    C. R. Stucki wrote:


    So what are your answers?

Comments for this article are closed.