Abortion Rights Before State Legislatures

Last time I made the point that the demise of Roe v. Wade, if it happens, will result in the issue of abortion being taken up by state legislatures.  I regard that prospect with hope and optimism.  In this post, I explain why.

In a nutshell, placing the issue of abortion rights in the hands of state legislators will, I believe, eventually result in its being a far less contentious issue than it has been for almost five decades.  I believe that, when the issue is subjected to the democratic process, the solutions the states arrive at generally will ensure the continuation of abortion rights while also restricting them somewhat.  Of course, in certain states (California? Alabama?) one side or the other may win a complete victory and the other suffer a complete loss.  But as a rule, the process of lobbying for and against proposed bills and then voting for or against legislators on the basis of their votes on those bills will be far more satisfactory (albeit not completely so) to both sides than is currently the case.

Should the Court overturn Roe, et seq., there will of course be an immediate period of Sturm und Drang, with pro-abortion rights folks proclaiming the end of the world and those opposed celebrating.  The reality will be that, since there are no state laws restricting the practice (how could there be?), abortion will continue to be legal across the country until legislative bodies begin to restrict it.

We’ve lived under a system of readily available abortion for almost 50 years.  During that time, the issue has been hotly debated to no resolution.  Abortion rights advocates still support abortion rights and those opposed are still opposed.  But that lengthy debate has had one very salutary effect on the populace generally: our attitudes toward abortion rights have been thought out and refined to the point where our take on the matter is fairly nuanced.  A fair reading of public opinion is that people generally support abortion rights, but with limitations.  (Here, here and here are some of the relevant surveys of those attitudes.)  Our laws and practices on abortion should reflect that broad consensus.  Perhaps the very worst aspect of Roe is that, for the past 49 years, they haven’t.  If they eventually do so, our democracy can be said to have worked.

What hasn’t been so positive about these last 49 years is that, because abortion rights have been a creature of apparently unassailable constitutional precedent, state legislators have been freed from the obligation to take the matter as seriously as they otherwise would.  For decades now, we’ve seen conservative state legislatures essentially virtue signaling to their constituents.  We’ve seen law after law passed that any sensible person would know would be overturned by federal courts as violative of Roe or, later, Casey.  Those legislators could pass those laws secure in the knowledge that they’d have little or no effect on the abortion rights of women in their states.  They could then report to their anti-abortion voters that “they tried.”

Meanwhile, those legislators who support abortion rights were equally secure for the same reason.  For both pro- and anti- legislators, Roe was an all-purpose backstop.

But without Roe, that would change.  All of a sudden, both those who favor and those who oppose abortion rights would have to read their constituents very carefully and draft bills and vote accordingly.  In the process, they would learn (often the hard way) where the line between the acceptable and the unacceptable was drawn.  Can conservative voters live with abortion up to 12 weeks of gestation?  What about 20 weeks?  Could more liberal voters do likewise?  Where is the line, which, if you cross it, you motivate activists and lose enough votes to lose office?  Abortion is an important issue, but not the only one.  At what point does it rise to the level of a deal-breaker for voters?  At what point does it outstrip all those other issues in importance?  Do all those pro-abortion rights folks really mean it when they claim that any restrictions on abortion are too many?  How many of those voters are there in fact?  And how many anti-abortion rights people will cast their votes solely on that issue.  How many will turn away from an office-holder they’d otherwise support for the sole reason of a vote in favor of abortion, however restricted?

In each state, there’s some “angle of repose,” some set of rights to- and restrictions on- abortion at which office holders can safely continue in office.  The process by which they find that angle of repose will be fraught with peril for their chances of reelection.  It will take several (many?) years for the issue to come to rest, but come to rest it will.  That doesn’t mean that there won’t be continuing efforts to, by one side expand and, by the other further restrict abortion rights.  There will be, even as there are countless other issues that see bills proposed, lobbied for and against, and voted on (or not) during every session of every legislative body.

Throughout all that, perhaps the most important outcome will be the fact that, whatever happens in any given state, We the People will have been heard, in precisely the way we haven’t been since January 22, 1973.  Of course extremists on both sides will continue to be dissatisfied with the new status quo, whatever it is.  The pro- side will continue to argue that all women at all times should have the right to a publicly-funded abortion for any or no reason.  The anti- side will continue to say that each and every abortion is a moral wrong that the state should outlaw.  But each will eventually have to admit that it’s had its say and the people of the state simply don’t agree with those extreme points of view.  Which of course they don’t, as multiple surveys have long demonstrated.

However the matter shakes out, we will continue to have abortion rights in this country and, unlike now, they’ll be more restricted than they’ve been and, as a result, more in line with the values of Americans generally.

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