Justice Anthony Kennedy is retiring, and liberal panic has set in. “You are going to see 20 states pass laws banning abortion outright—just banning abortion—because they know that there are now going to be five votes on the Supreme Court to overturn Roe v. Wade,” CNN legal analyst Jeffrey Toobin declared last week. “Abortion will be illegal in a significant part of the United States in 18 months. There is just no doubt about that.”
Let me introduce some doubt. We’ve been here before. In 1986 and 1987, President Ronald Reagan appointed two critics of Roe to the court. One was Antonin Scalia; the other was Kennedy. In July 1989, these two joined the majority opinion in Webster v. Reproductive Health Services, which rolled back Roe’s trimester framework and signaled that the court was open to previously forbidden restrictions. Pundits, activists and even Roe’s author issued the same forecasts we hear today: Roe would be overturned, and abortion would be banned in much of the country.
It didn’t happen. Why? Because Roe is a singularity. As you approach it, the laws of abortion politics bend.
Most Americans are conflicted about abortion. They don’t like it, but they also don’t like the idea of banning it. In normal elections, these people focus on other issues. But when the court gets close to dismantling Roe, and when lawmakers start to look serious about banning abortion, ambivalent voters wake up. They start to notice, with concern, which candidates are pro-life. Some pro-life politicians end up losing their elections. Others hide or flee. The predicted frenzy of abortion bans turns into a frenzy of retreat.
I wrote a whole book about this, but I’ll boil it down here. The GOP faces three problems: a polling problem, a voting problem, and a politician problem.
The polling problem is that abortion is both a moral and a legal question. Lots of people who think abortion is wrong don’t like the idea of politicians, as a matter of law, telling women and families what to do. When Roe looks secure, these folks see the issue in terms of their moral qualms. But when Roe is in danger, they start to think more skeptically about whether the government should be involved.
That’s what happened in 1989. In Gallup surveys from 1973 (when Roe was decided) through the 1980s, the percentage of Americans who said abortion should be “legal under any circumstances” hovered in the 20s. After 1989, it climbed into the 30s and didn’t come back down until 1996—four years after the court, in Planned Parenthood v. Casey, assured the country that Roe would remain. In University of Michigan polls throughout the 1980s, the percentage who said that “by law, a woman should always be able to obtain an abortion as a matter of personal choice” hovered in the 30s. After 1989, it rose into the 40s and stayed there for a decade. In Time/CNN polls, the percentage who said “a woman should be able to get an abortion if she decides she wants one, no matter what the reason,” surged from the 30s to nearly 50 percent. In Pew surveys, the percentage who favored measures to make abortion more difficult fell by 9 points, while the percentage who opposed such measures rose by the same amount.
The shift in views is compounded by a shift in intensity. Pro-choicers outnumber pro-lifers. But pro-lifers are more dedicated, and this gives them an advantage. In exit polls, when you zero in on the people who say abortion was their top voting issue, they’re more likely to be pro-life than pro-choice. That pro-life advantage diminishes, however, as the issue’s salience rises and the pool of abortion-driven voters increases. An influx of pro-choicers dilutes and eventually exceeds the pro-life faction. You can see this in presidential exit polls from 1984 to 2000. The larger the percentage of people who cast their ballots based on abortion, the smaller the pro-life advantage.
This is how pro-lifers undo themselves. When they accumulate enough justices to threaten Roe, they scare pro-choicers into voting on the issue. It’s no accident that in 1990, for the first time, the number of pro-choicers who made voting decisions based on abortion exceeded the number of pro-lifers who did so.
Together, the polling shift and the voting shift trigger a third problem: battlefield desertions. Some politicians who call themselves pro-life are willing to lose elections over the issue. But most are cowards. They don’t want the court to overturn Roe. They want to keep Roe as a punching bag and as a sandbag. Roe protects them from having to deliver on their promises to pro-life voters. It lets them fire up religious conservatives in elections without scaring suburbanites, libertarians, and younger voters who don’t want abortion to become illegal.
When the court threatens Roe, this game unravels. In 1989, the suddenly real prospect of enforceable abortion bans became a major issue in off-year elections. Many white Virginians were so alarmed that they set aside racial unease and elected a black governor, Doug Wilder, to defeat a pro-lifer. In Florida, a special legislative session to regulate abortion collapsed, and Bob Martinez, the governor who had called it, was thrown out of office. All over the country, “pro-life” politicians backed down and revised their positions. President George H.W. Bush and Vice President Dan Quayle, when asked about their own daughters and granddaughters, assured the public that these young women, if they were to get pregnant, would get to decide whether to have abortions.
The Supreme Court, too, was chastened. In the 1992 Casey decision, the court got its chance to follow through on Webster and overturn Roe. Instead, it flinched. The majority opinion, co-authored by Justice Kennedy, noted that:
[P]ressure to overrule [Roe], like pressure to retain it, has grown only more intense. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.
With that, balance was restored. Conservative politicians denounced the court and safely resumed their empty threats to ban abortion. Pro-lifers regained their advantage in exit polls. In 2016, Republicans quelled concerns about Donald Trump’s personal behavior by citing his promise to overturn Roe. Religious voters turned out in force, and Roe slipped back into jeopardy.
So here we are again. Kennedy, having disappointed pro-lifers, is retiring. Another justice, likewise suspected of pro-life sympathies, will take his place. Pundits and pro-choice activists are sounding the alarm that Roe will fall and half the states will ban abortion. It could happen. But it’s much more likely that these warnings, like those of nearly 30 years ago, don’t signal the end of the legal right to abortion. They signal the beginning of its revival.
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