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The politics of a post-Roe America


I agree with Scott that it’s highly likely — though not completely certain, Kavanaugh being the wild card here — that the SCOTUS will directly overrule Roe v. Wade in a couple of months, instead of continuing to chip away at it. It’s not too much of an exaggeration to say that the entire 40-year-long focused campaign to take over the federal judiciary that started with the formation of the Federalist Society in the early 1980s has had overruling Roe as its prime directive from the start. For complicated sociological-legal reasons, the case has always been the epitome of (the wrong kind of) judicial over-reach in the minds of the American right wing, and at this point not explicitly over-ruling it would be considered a massive betrayal by everybody who worked for decades to hijack the judiciary in general and the SCOTUS in particular. I also agree that as a practical matter it doesn’t really make much difference whether Roe is explicitly overruled now, because it will be within the next year or two, given what’s going on in Republican state legislatures.

Which raises the question of what happens next.

First, I’ll make a prediction in which I’m very confident: The SCOTUS will not nationalize anti-abortion law by declaring some sort of fetal personhood under the equal protection clause of the 14th amendment. At least not this summer. I’m confident about this because I know how these people were educated and how they think, and they’re not going to do it.

So for the time being this is going to be framed as a matter of federalism and states’ rights, and combating judicial/federal government overreach.

But the problem is that this framing of the legal-political issue, while pretty much guaranteed by the weird ways in which legal doctrine works, makes no sense from any ideological position regarding the substantive underlying issue.

The only rational basis for banning abortion is some sort of argument that accepts some version of fetal personhood. That kind of argument can’t possibly accept the idea that abortion should be a matter of individual state legislation, like state tax rates, or whether marijuana should be legal in that state, or the like. In other words, the procedural objections to Roe — that the case represented a classic example of “legislating from the bench” — have always been basically incoherent. If you don’t accept fetal personhood, then laws banning abortion are obviously grotesquely unjust incursions on reproductive freedom. If you do accept it, then laws permitting abortion are essentially legalized infanticide.

There’s no way that either of those positions can possibly be squared with the idea that this is the kind of essentially regulatory matter that ought to be left to individual state jurisdiction. And it won’t be: After Roe is gone, the fight will be to enact a national law either legalizing abortion or banning it. I’m not going to predict how that fight will play out over the next few years, as I have no idea really.

I also have no idea whether a future SCOTUS will decide to re-constitutionalize the issue, once that battle has played out, by for example striking down a national law legalizing abortion as a violation of the equal protection clause. That could certainly happen under certain circumstances. (This would definitely lead to a crisis of institutional legitimacy of some sort).

But for now, the way this is going to play out is that when Roe is struck down, 50 years of right wing arguments about how this should be a matter for individual states to decide are going to go out the window pretty much instantly, and the battle will shift to whether a future GOP or Democratic trifecta will be able to be disciplined enough to enact a national abortion ban or legalize abortion nationally.

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