I try to avoid writing about divisive social issues, but it is difficult to get around commenting about the likely end (or at least substantial cutback) of the Supreme Court’s 1973 ruling in Roe v. Wade in which the Court declared that a right to abortion was constitutionally mandated. The principal argument for this conclusion in Roe was that prohibiting abortion violated a right to privacy inherent in the Constitution and Bill of Rights. As a result of Roe, abortion prohibitions in approximately 46 states were overturned.
Last week, a leaked draft opinion by Justice Samuel Alito in the Dobbs case which arose out of a Mississippi statute prohibiting abortion after 15 weeks, indicated that the Court was poised to overturn Ro. The rationale in Justice Alito’s draft is that an abortion right was not found in the Constitution nor reasonably derived from its provisions. However, the draft opinion is not final and it is possible that the result of the case or the Court’s analysis could change.
Beyond stating that I have not been particularly impressed by the Roe decision from the time I first read it in law school, and that I believe that further review and action by the Court on the subject of abortion is appropriate, I am going to confine this column to an analysis of the likely political fallout from the Dobbs case. I will assume that something close to the opinion by Justice Alito is ultimately issued.
First of all, it seems likely that a good number of people do not understand that the end of Roe will not in itself make abortion illegal in the United States. In fact, overturning the decision just means that the subject will be placed back in the hands of the state legislatures. In some states like New York and California, it is virtually certain abortions will be permitted. Indeed, if anything, abortion rights are likely to be expanded, even to the point of subsidizing women from other states who seek abortions. On the other hand, there are perhaps 15 states who will likely ban abortions, perhaps subject to a few exceptions, and some others may limit the number of weeks during which it is allowed.
Given the overall political situation in 2022, you certainly can make a case that this issue will be helpful to Democrats in the midterm election. This has been shaping up as a miserable election for Democrats, with an unpopular President, rampant inflation, a crime spike, a falling stock market, out of control immigration, and a war that could escalate.
The Democrats’ prospects arguably will be a little different with the end of Roe. A decision overturning it could inspire apathetic or demoralized Democrats to vote, work actively for candidates and contribute more money. In races for the Senate, which is still in play, Democrats will point out that President Biden will effectively lose much of his ability to appoint federal judges, including justices of the Supreme Court if Democrats do not retain control. Democrats will also, accurately or not, make a slippery slope argument that the end of Roe could jeopardize other recent Supreme Court rulings on social issues that are popular with young voters, for example, the Obergefell decision allowing gay marriage,
For Republicans, the best political advice would be to agree with the Court that the abortion issue needs to be decided by legislatures rather than unelected judges, and pretty much leave it at that. Swing voters are probably not interested in a new era of social upheaval and the GOP, which has the wind at its back right now, needs to focus on the failures of the Biden Administration rather than abortion politics. Indeed, advocacy of a federal statute banning abortion, which may be unconstitutional in any event, is unwise.
Most likely voters in November will be largely focused on economic issues. But the draft opinion by Judge Alito does inject a significant note of uncertainty in our politics.
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