Impending death of 'Roe' set to tear America apart
In his draft opinion overturning Roe v. Wade, Justice Samuel Alito blamed that 1973 abortion decision for sparking “a national controversy that has embittered our political culture for a half century.”
As a matter of history, the idea that Roe ignited America's culture wars is, at best, a distortion. The 7-2 decision was not nearly as politically divisive when it was decided as it is today. Catholics opposed it, but many conservative evangelicals did not. As Dartmouth historian Randall Balmer has argued, evangelical leaders didn't seize on Roe until the contemporary religious right began to coalesce at the end of the 1970s.
But even if Roe had let loose the forces ripping this country apart, its end still wouldn't bring détente. Instead, the demise of Roe will exacerbate America's antagonisms.
“If you think it's polarized now, you haven't seen anything yet,” said Mary Ziegler, a visiting professor at Harvard Law School and author of the forthcoming book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”
If the Supreme Court really discards Roe and Planned Parenthood v. Casey, the 1992 decision partly upholding it, we will have two wildly different abortion regimes. About half of states are expected to mostly prohibit abortion; according to the Guttmacher Institute, in 11 states there won't even be exemptions for rape and incest. A bill moving through the Louisiana Legislature would allow prosecutors to charge those having abortions with homicide.
Blue states, meanwhile, are setting themselves as abortion sanctuaries. Oregon lawmakers recently passed a bill to create a
$15 million fund to help cover abortion costs, including for those traveling to the state for the procedure. Something similar is in the works in California and Illinois.
The right won't be content to watch liberal states try to undermine abortion bans. Already, a Missouri lawmaker introduced a measure that would let private citizens sue anyone who helps a Missouri resident get an out-of-state abortion. More such proposals will probably follow. Under a Texas law passed last year, people in other states sending abortion pills through the mail to Texas residents could be extradited to face felony charges.
Experts don't know how these kinds of interstate battles are going to play out because there's so little precedent. Conservatives, of course, have a plan for reconciling clashing abortion laws — a federal abortion ban. Speaking to NBC News this week, Sen. Kevin Cramer of North Dakota said he was concerned about women traveling across state lines to get abortions. “I don't find a lot of solace in that just because it didn't happen in my state,” he said. “So yeah, I think you could expect that pro-life activists would push for federal protections.” According to The Washington Post, Joni Ernst, a Republican senator from Iowa, plans to introduce a bill to ban abortion after six weeks.
It won't pass as long as Democrats are in control, but at some point, they won't be. It's easy to imagine conservative activists demanding that their leaders push through a national ban. It's hard to imagine the Republican senators who've defended the filibuster putting procedural principle above one of their base's most cherished goals.
But long before we get there, the death of Roe will intensify our national animus, turning red states and blue into mutually hostile legal territories.