Following up his ridiculous pre-emptive dismissal of the Fitzgerald indictments, Richard Cohen–for whom laziness is even more central than parroting center-right received wisdom–pulls the old “what’s the big deal if Roe gets overturned” routine out of the mothballs. Every fallacious assertion is there: Roe produced a social backlash because of its weak legal reasoning, overturning Roe will just return the issue to the states, choice won’t really be threatened by overturning Roe, and most legislatures won’t ban abortions because public opinion would oppose it. Let me say a bit more about the last two erroneous assumptions.
First of all, even if Cohen’s argument that just a handful of states would ban abortion post-Roe were true, it’s still pretty appalling; as Elton pithily explains, it’s sure easy for some guy sitting in Washington D.C. (or New York or LA) to tell poor women in Mississippi and Texas and Alabama to suck it up and head to the back alleys. It’s always easy to sell out other people’s interests. But, of course, it’s not true. Again, it’s remarkable the way that the abortion debate makes people forget things they should know about American politics, but it’s simply nonsense to assume that favorable public opinion leads straightforwardly to policy outcomes. And the nature of the abortion issue tends to emphasize countermajoritarian outcomes. In 1973, abortion had only been decriminalized in 4 states although public opinion was roughly the same as it is today, and of course a major reason for this is that affluent women already had abortion-on-demand irrespective of the legal situation in their state; generally, they could get a quite abortion from a doctor who would not be prosecuted, or at worst they could just go to a state where abortion was legal. Formally legal abortion matters most to women who have the least political power, which makes it much easier to keep formal abortion bans on the books. (If abortion bans were actually strictly enforced, that would be different, but they weren’t and wouldn’t be.)
But that was 1973–has something changed? Well, one thing has changed for the better: some states formally repealed their abortion statutes, which makes the status quo more favorable. But, still, 17 states would have immediate abortion bans in place, a lot more than Cohen is letting on. And, of course, two things have changed for the worse. First, very conservative Republicans have taken over statehouses, which favors pro-lifers greatly. And second, politicians are more insulated from public opinion, because beating incumbents has become virtually impossible (this is particularly important for the prospects of regulating abortion from the federal level, but matters at the states to.) As Hacker and Pierson point out:
As recently as a decade ago, a quarter or more of congressional seats were genuinely in play in any given election. Today, virtually none are. Thanks to the increasing power of gerrymandering, most house districts are completely safe…and Senate elections are also less competitive than they once were. This leaves favored candidates in to worry almost exclusively about pleasing their partisans. (9)
Incumbency’s power has also been increasing at the state level. In light of this, anybody who thinks that public support for legal first-trimester abortions will make abortion legal in most places has a remarkable naive and unsophisticated view of American politics. The precise number of abortion bans would depend on a number of factors, but in a context of Republican state governments largely insulated from electoral pressure, 15 states passing or maintaining abortion bans after Roe is a conservative, low-end estimate; it could be much higher. And it’s more a question of “how much” rather than “whether” Congress will regulate abortion unless the Dems can take over one or both Houses. But, hey, if you’re a sixty-year old man and most of the women you know live in the most liberal states in the country, what do you care?