Thursday, July 07, 2005

The Politics of A Roe Reversal

James Taranto recently wrote an interesting piece about the “Roe effect,” the theory that Roe has resulted in a decrease in the number of Democratic voters and the ascendancy of the Republican majority. He makes the following point in conclusion:

"If Roe were overturned, the politics of abortion would change dramatically, and in the Democrats' favor. With the legality of abortion itself on the line, the debate would shift away from the pro-choice extremes, forcing pro-choice politicians to take a more centrist (and popular) position. Republicans would be torn between their antiabortion base and more moderate voters, for whom an outright ban on abortion is a bridge too far."

Let's examine this in the context of the claim made by liberals in Congress that a reversal of Roe v. Wade will result immediately in the return to the days of the "back alley abortionist" and other unpleasant results.

Of course, if the Supreme Court were to reverse Roe v. Wade and declare that there is no constitutional right to an abortion, the direct result would be that Congress and the legislatures of the several states would have expanded legislative authority to adopt laws regulating the practice of abortion. Because it is possible (if not probable) that Congress and some of the more conservative states would be inclined to propose outright bans, the proponents of choice equate the Supreme Court’s action with the result of ensuing legislative action. But if indeed that were the case, there is an obvious response: laws are enacted by democratically elected people, who serve at the pleasure of the electorate. If a majority of a state’s citizens do not want their elected representatives to regulate such privacy decisions, then the place for action is the ballot box, not the halls of the Supreme Court.

[The same constitutional argument being made by abortion supporters has been made for decades here in Massachusetts, where Catholic sympathizers have sought a repeal of a constitutional amendment banning any form of aid for sectarian schools (blogged earlier here). The amendment was adopted out of rabid anti-Catholic hatred during the rule of The Know Nothing Party in the 1800’s. Opponents of the repeal argue that “we should not give taxpayer money to private schools.” And they may be absolutely correct; and we will not, because the Massachusetts legislature would never enact such a statute.]

Here in Massachusetts, no citizen ought worry about the prospect that the right to abortion would be further infringed. With the current vast majority of left-leaning legislators, such an action is clearly out of the realm of possibility.

Even outside of Massachusetts,
polling statistics on abortion taken by a multitude of organizations during the past several years demonstrate that, across the political spectrum, there is a remarkably resilient consistency in the electorate’s opinions on abortion. With (to me, surprisingly) slight deviations between Republicans and Democrats, the majority of Americans believe that abortion should be legal, but not in all circumstances, and not without some conditions.

The percentage of Americans who believe that abortion should be illegal all of the time is a significant minority. Gallup’s results during the past 30 years range from a high of 22% (1975, 2002, 2005) to a low of 12% (1990). Washington Post’s results between 1996 and 2005 range from a high of 20% (2004, 2001) to a low of 13% (1998).

But those who believe abortion should be legal all of the time are similarly a significant minority, although somewhat larger group than diehard opponents. WaPo 19-24%, Gallup 21%-31% (24% today).

So the prevailing opinion in America today is that abortion should be legal, but subject to important limitations and exceptions. And they want the qualified access to abortion to be maintained within the framework (constitutional or not) of the nation’s laws.
This mountain of polling data suggests that, even if a newly constituted Supreme Court were to reverse Roe contrary to the preference of a majority of Americans, legislatures would have a very challenging political time enacting outright bans in their respective states.

A Roe reversal would result in a significant change in political activity across many states. Because a ban on abortion has not been constitutionally permissible for over thirty years, and because, it appears, a majority of Americans support the type of restrictions and conditions on abortion that have passed constitutional muster (and even some that have not), the majority of the electorate has not regarded the political issue of abortion to be so grave and immediate. As a pro-life legislator in a very pro-choice district, I faced considerable disagreement over the issue, but it did not significantly affect the percentage of my victories – principally, I believe, because my pro-life position did not represent much of a threat to those who disagreed with me.

With a reversal of Roe, however, pro-choice voters would be more energized to ensure the election of a firmly pro-choice legislator, and pro-life voters the opposite. Annual or biennial legislative elections are more likely to become true battlegrounds over this single issue, whereas in the recent past, abortion was only one of many issues that form a voter’s intentions, and with the constitutional protection of the right to abortion, a candidate’s position on the issue was not of such immediacy that the issue leaps to the foreground of voter motivation. That is likely to change if Roe is reversed, perhaps especially so in Congressional races.

While this may result in unusually urgent political activity, who’s to argue that this is a bad thing? In fact, one might argue that something is urgently needed to energize the voting-eligible population, and this would surely be an excellent catalyst to energize the electorate and spur an increase in participation.

In light of the overwhelming majority of people who express opposition to a total ban on abortion, then, it would seem likely that a reversal of Roe would cause ardent pro-life politicians who enjoyed support from the hard right to re-evaluate their positions. It is one thing to say to your pro-life constituents that you “favor a constitutional amendment banning abortion” when the real prospect of such an eventuality is slim. It is quite another to case a recorded vote on a specific legislative proposal that has such immediate and profound an impact. Roe has given this group of politicians some degree of cover for over three decades. Its reversal would change the game entirely.

[Humbly submitted to OTB and Wizbang.]

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