Nearly 50 years after the Supreme Court handed down Roe v. Wade and forever changed American politics, a recomposed Court looks poised to overrule it. The Court, of course, has played with the idea of overturning Roe for decades. And now, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg, the anti-Roe wing of the court looks ascendant.
Of course, the legal, societal, and policy consequences of such a decision cannot be understated. Returning abortion policy to the states would be a epic-defining shift in American politics. There’s no doubt it would be a windfall for conservatives, who have been chasing pro-life policies for years. But the electoral consequences of such a decision would be distinctly more mixed. While perhaps not be immediate, there is a strong possibility ending Roe would be electorally damaging to Republicans.
The End of Roe Might Shift the Frame of the Abortion Debate
The abortion debate in America is unique. Not just because of how partisan it is, but because of how it’s framed. Because Roe constitutionalized abortion, debates take on an abstract character rather than the philosophical and moral one. Stories of dangerous back-alley abortions and doctors denying desperate women abortions are foreign to most Americans. But these very stories are what defined abortion debates pre-Roe and in many European countries.
Pre-Roe, policy on abortion was moving in a more pro-choice direction. But this didn’t happen in a vacuum. Largely as the result of activists highlighting the dangers of illegal abortions, states began to reform their laws. By some estimates, close to 1/3rd of American women got an abortion pre-Roe. 200 of them died yearly around the time Roe was decided.
In 1964, Gerri Santoro, a 28-year-old woman, bled to death in a motel after she and her boyfriend attempted to perform an abortion. The pro-choice movement used the nauseating photos of her body as a symbol of the consequences of illegal abortion. In Europe, stories of women dying or enduring complications from illegal abortions helped spur pro-choice forces. In Ireland, Savita Halappanavar, a dentist, miscarried at 17 weeks, but the doctors denied her request for an abortion because they feared the legal consequences. Partly as a result, she died of an infection stemming from the miscarriage at the age of 31.
Her death galvanized pro-choice groups in Ireland, culminating with the landslide passage of Amendment 36th in 2018, which repealed the country’s constitutional prohibition on abortion. No doubt such stories would begin popping up again in the United States in a post-Roe world. Some estimate that 1/4th of American women still receive an abortion in their lifetime, although that number has been declining for years.
Stories of harsh punishment would also become common – women in a legal gray area and seek out an abortion, only to be fined or jailed afterward. States might also be harsh on OBGYNs and other doctors who perform abortions, increasing the probability of a “cause celebre”. The end of Roe would allow pro-choice advocates to shift the frame of the debate. Like LGBTQ rights, abortion could become plausibly framed as one of fairness, oftentimes in visceral, emotional terms. And unlike most of the stories around LGBTQ rights, stories of illegal abortions often involve gruesome, disturbing, and deadly details.
This change in discourse could finally break the public opinion deadlock on abortion. Polls show that the electorate’s views on the issue have remained remarkably stable since Roe was decided. In the absence of Roe as a backstop, public opinion might finally change as the debate changes from a legalistic and abstract one to one centered on tangible moral concerns.
Of course, other issues with inflexible public opinion involve visceral and emotional appeals. Pro-gun control groups often invoke school shootings, but polls on the issue have been static for years. It’s possible that the abortion debates of the future resemble the current gun debate. But this seems unlikely given the evidence from other countries, the high number of women who seek abortions, and the salience of the issue.
The End of Roe Might Accelerate the Suburban Shift
The leftward lurch of America’s suburbs is well known to political observers at this point. Driven mostly by cultural and social issues, suburban values in the last 10-20 years have often clashed sharply with GOP rhetoric and priorities. This shift, of course, is global in many ways, but the hot-button cultural issues of the 2000s have played a role as well. Immigration, same-sex marriage, and racial issues are areas where GOP rhetoric clashed with suburban voters. Abortion restrictions would be those issues on steroids.
Near-total abortion bans, some without any exceptions for rape, incest, or the life of the mother, would likely become standard law for any GOP-controlled state. There’s reason to believe such laws are unpopular in many suburbs. In 2018, Alabama voters voted on whether or not to amend the state constitution to outlaw abortion. In Shelby County, a wealthy, conservative suburb outside of Birmingham, Kay Ivey, the Republican governor, won by 35%. The abortion ban? It only won by 19%. In Colorado in 2020, voters voted on whether or not to ban abortion at 22 weeks. In Douglas County, an extremely wealthy suburban county south of Denver, Trump won by 7%. The 22-week abortion ban lost by 1.5%. This is despite polls showing that over 60% of Americans favor banning abortion after the first trimester (12 weeks).
And this gap between the GOP’s position on abortion and the suburbs could grow larger. No longer would abortion be a theoretical, abstract debate. It would be real, with real consequences and real stories like the ones mentioned above. Suburban voters would be face to face with the realities of outlawed abortion, which might seem unfair, unequal, or tough to swallow. Similar sentiments drove much of the momentum behind the push for same-sex marriage, and the same could happen here.
It would also put the GOP on the defensive on a hot-button cultural issue for the first time in years. Since 2016, the GOP has essentially been playing offense in the culture wars. Deliberately picking fights in the suburbs over issues like how race is taught in schools, “defund the police”, and COVID-restrictions. Not all of these have necessarily been successful, but they represent a willingness by the GOP to seek out cultural issues where Democrats may have overreached to try to nudge suburban voters back to the right. But abortion might be the reverse. It would put the GOP on the defensive in the suburbs and force them to react, potentially creating a wedge issue for Democrats to exploit.
The Turnout Effects are Uncertain
Partisans love to tell themselves myths. But perhaps the biggest myth is that if a party “delivers”, its voters will reward it through high turnout. In reality, the truth is more complicated. Voters are fickle, and often after huge electoral success for their party on the national stage, voters stay home. After 2004, George Bush delivered two Supreme Court justices and a high profile national win – Democrats crushed in the 2006 midterms. Obama won a huge win in 2008 and Democrats passed the ACA – their voters stayed home in 2010. After 2016, Trump delivered two Supreme Court justices and a tax cut bill just like he promised – GOP turnout lagged in 2018.
Is the situation here the same? No, in fact, it’s rather unprecedented. There’s no good analogy for a party getting a massive, country-changing national win in the middle of an off-year simply via a court ruling. Brown v. Board of Education broke along lines that were more geographic (North v. South) than partisan. Obergefell v. Hodges was a big win for Democrats, but support for same-sex marriage had been rising so rapidly in recent years the “win” had a feeling of inevitability not present here. There are, of course, many landmark Supreme Court cases, but none quite fit the situation the country faces here. A hotly debated and deeply polarizing social issue, decades of fights over the issue, and the court issuing potentially a definitive statement.
So what would be the effect here? The truth is nobody knows for sure. On balance, it seems likely that in 2022, Democrats would be motivated by what they feel is a monumental loss. There’s also the possibility that with Roe gone, social conservatives would lose a major motivating issue. Most court decisions on high-profile social issues in recent years, like gay marriage, have gone against social conservatives. The entire movement, arguably for decades, has pushed back against changes in society that are in opposition to its values. A situation where social conservatives win such a massive victory would be a new frontier. No doubt social conservatives would shift their focus to other issues, but overturning Roe, a major goal for a half-century would cease to be an underlying motivator.
The end of Roe would be a massive win for the GOP. Even if it hurts the part electorally, almost every conservative would take the trade. But it’s possible that in 10 years Americans look up and see an electorate that has become much more pro-choice. One that is debating the latest botched abortion controversy or the latest proposed boycott of a state with new restrictions. The apparent victory may end up being a high water mark for the pro-life movement instead of the beginning of a new era.
