I support overturning Roe. But pro-lifers need to understand why so many Americans fear this decision.
Editor’s note: The Supreme Court overturned Roe v Wade on June 24 in a 6 to 3 decision, returning the issue of abortion restrictions to the states. America has published several essays on the decision, which was first leaked to the press in May. Read other views on abortion and the reversal of Roe v. Wade here.
Since the leak of the first draft of a majority opinion that indicates the Supreme Court is likely to overturn Roe v. Wade, there has been a flood of outrage, grief and concern from people opposed to this outcome. While these reactions were to be expected—as was the broad outline of the court’s decision—their intensity and depth deserve attention and understanding.
As a dedicated pro-life advocate who has written on these issues frequently, I have two main goals in calling for deeper understanding of the reaction against the impending end of Roe v. Wade.
First, I hope to help other pro-lifers see how these reactions are a response—in large part, although not entirely—to ways in which the pro-life movement and its political alliances are perceived as a threat not just to abortion itself but also to democratic norms, to judicial commitments to civil rights, and to women’s health and economic security, as I will discuss below.
With Roe gone, we in the pro-life movement need to convince our fellow citizens in conscience to protect the lives of the unborn.
The strategic choice to focus on overturning Roe at any cost may have been unavoidable given the pro-choice movement’s absolutist rejection of any attempted regulation of abortion under Roe. But that strategy has left deep and lasting distrust both among people who favor legal abortion and those who may be uncomfortable with it but who do not feel represented by the pro-life movement. With Roe gone, we in the pro-life movement need to convince our fellow citizens in conscience to protect the lives of the unborn, and such work begins with recognizing why many of them do not trust or easily understand our good motives.
Second, to at least some people “on the other side,” I hope to offer evidence that there are pro-lifers who understand why they distrust and fear the pro-life movement. In a post-Roe world, there are going to be vast disparities in the legal landscape for abortion, with near-absolute prohibitions in some states and sweeping protections for access stronger than Roe ever was in others.
Even while advocates on both sides of the issue will argue to change those laws (arguments will now be subject to political compromise rather than adjudication solely at the Supreme Court) there will remain a need for public policies that reduce the demand for abortion by helping people avoid unintended pregnancies and offering the resources needed to make welcoming a child easier, safer and more economically secure. Such resources, as pro-choice advocates often point out, are likely to effect a greater reduction in the number of abortions than legal restrictions alone ever can. Cooperation toward those ends requires a deescalation of the zero-sum conflict between pro-lifers and pro-choicers that has too often been the dynamic under Roe.
Even as I offer a strong critique to other pro-lifers about the political strategies that led to this moment, I am fully supportive of overturning Roe v. Wade and Planned Parenthood v. Casey.
Even as I offer a strong critique to other pro-lifers about the political strategies that led to this moment, I am fully supportive of overturning Roe v. Wade and Planned Parenthood v. Casey. First and foremost, this is because there are incontrovertibly unique unborn human lives being destroyed in abortion, even if there is no fully neutral way to determine when those lives ought to be counted as persons. Those lives morally deserve legal protection, even as we ought to recognize that good laws toward this end are difficult to frame because of inevitable tension with women’s bodily integrity. But the profound difficulty of writing such good laws does not amount to a constitutional prohibition, either implicit or explicit, on protecting the unborn.
Second, I support overturning Roe v. Wade because, as long as it is in force, it will continue to dominate and derange our politics by incentivizing recourse to the courts rather than legal compromise, establishing all-or-nothing stakes for every Supreme Court nomination, and leading lawmakers to craft bad laws designed to evade judicial review. The end of Roe v. Wade is already controversial, but this is best understood as the apex of five decades’ worth of controversy caused by the unwarranted constitutionalization of a crucial moral issue on which Americans remain deeply divided. Overturning Roe is the necessary next step on a long and difficult road to arguments about abortion that do not immediately wind up in the ditch.
With that lengthy preamble, here is a non-exhaustive list of reasons that the pro-life movement’s political strategy for opposing Roe has engendered such distrust and fear.
Establishing a Supreme Court majority to overturn Roe depended on dishonest violation of many institutional norms and is part of a pattern of minoritarian governance. When Justice Antonin Scalia died, the Senate majority, led by Mitch McConnell, refused to even hold hearings for Barack Obama’s nomination of Merrick Garland, the pinnacle of a long pattern of obstruction of Mr. Obama’s judicial nominees. The justification Mr. McConnell offered at the time, nearly nine months before the 2016 election, was that a presidential campaign was underway. Yet Mr. McConnell rushed through Amy Coney Barrett’s confirmation even though her nomination was received only five weeks before the 2020 presidential election.
Here is a non-exhaustive list of reasons that the pro-life movement’s political strategy for opposing Roe has engendered such distrust and fear.
Adding insult to injury, the conservative nominations that have shaped the current court have come from two presidents—George W. Bush in his first term and Donald J. Trump—who won Electoral College victories while losing the popular vote. Also, due to the structure of the Senate, the majorities that confirmed their nominees represented far less than half of the population. While such victories, and the nominations and confirmations following them, are of course constitutionally valid even when they violate Senate norms, they are a thin mandate for major changes in constitutional interpretation.
Commitment to President Trump has telegraphed a disdain for democratic norms and lack of concern for women’s dignity. From the revelation of Mr. Trump’s disgusting comments about women shortly before the 2016 election to his advancement of the “Big Lie” narrative about the 2020 election being stolen from him—which culminated in his incitement of the Jan. 6 insurrection at the Capitol—seemingly nothing he has done or could ever do was bad enough to cause the pro-life movement to draw a line.
The pro-life movement’s commitment to overturning Roe v. Wade has enabled the conservative legal movement to pursue a much broader agenda, including attacks on civil rights. The justices appointed by Republican presidents—after members of the conservative legal movement, especially the Federalist Society, assisted in vetting them—has also taken aim at a number of other long-standing precedents. The Roberts court has found much of the Voting Rights Act unconstitutional; only barely upheld the Affordable Care Act; rejected a number of campaign finance reform laws; invalidated many gun control measures by finding an individual right to bear arms under the Second Amendment; and found against many forms of federal regulatory authority.
While of course people may hold many different opinions about both these policy issues and the legal merits of the cases, the pro-life movement’s dedication to appointing conservative justices has resulted in a broad range of legal consequences beyond the likely overturning of Roe v. Wade itself.
Specifically with regard to the leaked draft opinion, there are fears that rejecting Roe’s reasoning about a right to privacy will imperil other precedents regarding access to contraception, L.G.B.T. civil rights and same-sex marriage. The draft opinion attempts to distinguish abortion from these other cases, but the court’s apparent willingness to totally overrule Roe means that people do not trust that these other precedents are secure.
Laws against abortion designed to get around the protections in place under Roe have been disingenuously explained or seemingly vindictive. The Mississippi law under review in the current Dobbs v. Jackson Women’s Health case, for which the draft opinion was leaked, is a direct challenge to Roe that restricts abortions after 15 weeks of pregnancy.
However, a number of other laws have also been passed that take aim at abortion in other ways to try to get around Roe’s limits. Some of these aim to burden the operation of abortion clinics themselves, sometimes by imposing requirements claimed to protect patient safety that were widely understood to make abortion clinics difficult or expensive to operate. And most recently, a widely critiqued Texas law, which other states have begun to adopt as a model, set up a bounty-based private enforcement mechanism in order to avoid a preliminary injunction against the law. The law depends on incentivizing private actors via financial reward to report abortion providers or anyone, who “aids or abets” an abortion—but does at least except the pregnant woman herself—and imposes the burden and cost of defense on anyone so accused.
Laws limiting abortion sometimes threaten medically necessary care, such as for ectopic pregnancies or miscarriages.Depending on how laws banning or restricting abortion are framed, they can sometimes apply over-broadly to medical care that is necessary for life-threatening situations in pregnancy, rather than only to elective abortions. Because of liability fears where medical exceptions are not clearly established, these laws can have a “chilling effect” on the availability and willingness of doctors and hospitals to provide necessary emergency care in these situations.
While the vast majority of pro-lifers recognize these situations as morally distinct from abortion, legislators writing anti-abortion laws have often been uninformed and uncareful about dealing with these exceptions. There have also been situations where women have been investigated and prosecuted following miscarriages. Even if laws restricting abortion are carefully written to avoid such outcomes—and not all are—further legal restrictions on abortion could increase the risk of overzealous prosecution in similar cases. Finally, though many pro-lifers have long rejected proposals for criminal prosecution of women who obtain abortions, some legislators are advancing bills that would classify abortion as homicide.
The pro-life movement’s political allies have gutted social safety net programs that would make it easier for women to carry pregnancies to term, with the pro-life movement offering no effective counter-pressure. Any number of proposed policy options, such as guaranteed parental leave or the continuation of the enhanced child tax credits adopted in Covid relief packages, would go a long way toward reducing economic insecurity as a incentive for abortion. Often, these measures, as well as other major elements of the social safety net, are met with intense Republican opposition, which the pro-life movement has not generally made it a priority to counter. While many in the pro-life movement provide private charitable support to crisis pregnancy centers and other similar efforts, the availability of a patchwork of private options cannot stand in for more reliable policies in support of economic security for parents and children.
Some pro-choice readers, seeing the catalog of problems listed above, may feel confirmed in their assumption that the pro-life movement is untrustworthy and dangerous; they may tell me that I am either ignorant or malicious for being glad that Roe v. Wade seems likely to be overturned, given the strategy that achieved that end. Some pro-life readers may have a ready explanation for why many of the issues noted above are reasonable responses to other excesses from the pro-choice side.
But I am not making a “both sides are terrible” argument here, nor even a “both sides are wrong” argument. Rather, I am asking what is necessary and possible for us to move forward in a world where Roe v. Wade no longer shapes the entire landscape of political discussion about abortion.
Roe v. Wade itself was a costly and tragic failure, which has cost millions of unborn lives and decades of political division and rancor. The goal of overturning it, while necessary and laudable, has been used as an end to justify both moral and immoral means. The pro-life movement has frequently been co-opted for other political goals and often happily colluded in them; politicians have used the lives of the unborn as moral cover for ignoring other calls for justice and to protect the common good. Many defenders of Roe v. Wade, meanwhile, have obscured and evaded the moral question about when life begins and what duties we owe to unborn children. Our country has, as a consequence of all these failures, not offered women a better choice than abortion, while it has accepted the lie that autonomy and freedom can only be guaranteed by the option to destroy an innocent life.
If we are finally able to turn the page to a new chapter of our struggle over abortion, all people of good will—but most especially those in the pro-life movement who have finally won in court—will need to risk listening to each others’ deep convictions and concerns. For the pro-life movement at this moment, that starts with understanding what people on the other side are afraid of and how we have contributed to that fear. We will not quickly convince each other to change our minds, but we can at least try to move past fear—and to hope for a better future together.