Roe v. Wade Is Dead: Here's What Happens Next
The Reversal of Roe v. Wade Will Have Impacts beyond Abortion
TL:DR Top-line Points - Roe’s reversal will have implications that extend far beyond the case itself and impact politics for years:
The legality of abortion will significantly change in only a handful of states.
Dobbs will give Democrats a boost, but will help the GOP in the long run.
Democrats could—but won’t—learn some lessons from the abortion debate and apply them to their approach to gun control.
Democratic enthusiasm for destroying inconvenient political norms and institutions will galvanize.
Violence and intimidation will surge in the wake of Dobbs, but most of the media will ignore—or excuse—these acts.
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It is overwhelmingly likely that the 1973 Roe v. Wade Supreme Court decision will be cast upon a long-smoldering bonfire within days—if not hours—of this writing.
That such a thing is even possible, much less highly probable, is the result of decades of work by the Federalist Society and other advocates of judicial restraint. And that’s to say nothing of the careful, patient efforts by pro-life forces that have built the necessary political will for a reversal. This will endured and grew, even in the face of an intimidating pro-choice movement that dominates most public discourse.
If you listen to that discourse, you might believe that the end of Roe will lead to widespread outright abortion bans, produce countless deaths of women “forced” to give birth, and signal the rise of a totalitarian theocracy.
The alarmism is a rhetorical tool, of course, and most (but not all) of the advocates making these claims know that the truth is much milder. But it’s hard to fundraise off of “mild.”
What will happen, though?
1. Most of the country will not have outright abortion bans.
If I had one wish about any conlaw controversy, it would be for the median American to understand that there is a difference between “Is X a constitutional right?” and “Should X be legal?”
These are fundamentally different ideas, but our disingenuous politicians and bumbling journalism majors present them as if they’re the same question. They are either liars or too ignorant to appreciate the crucial difference.
Put simply, a Roe reversal via Dobbs v. Jackson’s Women’s Health would answer the first question with a definitive “no.” But that does not in any way affect the second question. Casino gambling is not a constitutional right, but any state that sees fit to do so may legalize it. Here, states that already have permissive abortion laws will continue on unaffected.
Or, more properly: many states’ abortion laws may change, but abortion rights will not. It is the case that many states simply rely on Roe as a backstop for abortion protections, rather than, say, enshrining an explicit right to abortion in their own state constitutions.
Numerous states do have current protections on the books, and several states that do not will hurry to do so to one extent or another in the wake of the reversal. Otherwise, the law in those states may simply revert to pre-1973 conditions by default.
You may have read articles that claim that “half” the country will ban abortion if Roe is overturned. This is not accurate. Normally, these analyses quietly lump “bans” and “restrictions” (beyond Roe’s very liberal limits) in one category.
Indeed, there will be a few states that will attempt to impose something close to a full ban on abortion—and they should be permitted to do so. Just as some states have chosen to legalize recreational marijuana use, while others have not, jurisdictions will be able to take different and wildly diverse approaches to abortion law. This is a basic principle (and benefit!) of federalism.
But most on the left aren’t interested in federalism—during times when Democrats are in charge of the federal government, that is. What they would prefer under those circumstances is a federal regime (including the Supreme Court) dominated by leftists, dictating progressive precepts as mandatory to the entire populace.
Thankfully, our Founding Fathers (and most who came after them) knew better.
Roe’s end will mean a net increase in abortion restrictions overall, but only a few states will enact strong pro-life legislation in response to the overturn. In much of the country, abortion law will continue to be more permissive than it is in, say, the median European nation, which wouldn’t permit on-demand abortion beyond 20 weeks.
But that brings me to the political ramifications of Roe . . .
2. Roe’s overturn will be a boon for Democrats in the weeks that follow, but will ultimately help Republicans if Dems can’t moderate themselves.
Democrats will win a post-Roe fundraising bump that will likely dwarf even the surges they enjoyed during the “worst” of the Trump Era. I’ll go as far as to predict that the months after Dobbs will produce the Dems’ best fundraising quarter in history in terms of total dollars.
Even with brutal inflation and oppressive prices on housing, food, and gas, fired-up liberals will open their hearts and pocketbooks to help the party blow away every pre-election fundraising goal.
The reversal may also make a meaningful dent in GOP support among suburban women come Election Day. However, there’s no question that a red wave is coming. It’s just a matter of how big it will be.
Even after the Dobbs leak, polling has shown consistently that not only is abortion not one of the top five or six issues on voters’ minds, but that all of the top-of-mind issues favor Republicans.
Inflation generally, gas prices specifically, border control, violent crime, election integrity, and school / parental issues are those topics, in some order. Every single one of them tilts toward the GOP.
Now, it’s possible that Roe officially getting overruled could cause abortion issues to ascend the rankings. But it’s also June. How high will gas prices be by fall if we continue on this trajectory? And will the average voter care still about Dobbs when he’s paying $120 for a tank of gas in October and November?
That brings me to the long-term. What terrifies Democrats most about Dobbs is not—I repeat: is NOT—the lack of access to abortions. Again, in the majority of jurisdictions, there will be no meaningful changes.
Instead, what terrifies them is the reality that abortion will now once again become fair game for political debates. This is horrendous news for Democrats.
Previously, Roe meant that the legislative “50-yard-line” was really somewhere that put the pro-life camp’s backs up against their own end zone. All Dems had to worry about were sideshows like partial-birth abortion, which, as horrific as it is, could correctly be dismissed as an outlier scenario.
But those sorts of issues constituted the only fertile (pardon the pun) battleground for debate because Roe removed from the political realm so much of what was even possible, which has been a common lament of conservative legal scholars ever since.
Roe removed most abortion-related questions from the political arena altogether. The case left the GOP to push for incredibly modest victories around the margins, and even these measures usually came with immense and costly legal challenges and relentlessly harsh criticism from mainstream media voices. Democrats never even had to defend their ideas beyond broad platitudes and slogans, because a federal judge would simply erase any Republican legislative efforts without Dems having to lift a finger.
Post-Roe, the rules of engagement will look much different. The recent congressional hearings that saw abortion advocates and “health experts” unable to explain why infanticide shouldn’t be legal, or what a woman is, will now proliferate throughout the United States any time pro-life legislators want to press the issue.
Even in areas where pro-life support is weak, conservatives will still be able to force pro-choice lawmakers to explain why they favor laws that permit severing the spinal column of a creature that can feel pain, or dismembering a viable fetus, or selling the tissue of aborted babies. In other words, even where pro-life measures don’t have the votes to win, they’ll make the other side seem increasingly insane in the process.
In particular, this parade of horribles will illustrate just how radical national Democratic Party leadership has become, up to and including purging most or all pro-life Democrats. This will become a major problem for Dems after the initial funding sugar rush.
If Democrats allow more moderate voices to ascend to their leadership levels, the move will actually be a hugely helpful development for the party—and possibly the only thing that can save it from another beating in 2024. Those moderate voices would not only demonstrate that pro-life lawmakers may still have a place in Democratic politics, but they would also make it easier to continue to portray Republicans as the “real” extremists.
However, given the previously discussed pervasiveness of the Successor Ideology, it’s difficult to see the Democratic Party, of all things, being one of the first institutions to roll back its “wokeness.”
Rather than rational debates around how to moderate their message, I expect we’ll instead see things like arguments within the DNC about abolishing the word “woman,” even as socially conservative Hispanics flee the party en masse as it descends into further lunacy.
3. Democrats will fail to learn the right lessons from the abortion debate and be unable to apply those lessons to gun control advocacy.
As I said earlier, the conflation of “is this a right” and “should this be legal” is a problem that hamstrings intelligent debate on all sides. In terms of gun control, we see the flipside of this challenge, as progressives lament that there is a right to bear arms at all (sometimes offering ahistorical claims that no such right exists). We see these same folks calling not only for sweeping federal legislation to control guns, but also sometimes calling for the repeal of the Second Amendment.
I’ll give the anti-2A folks credit: at least they understand that many of progressives’ legislative proposals are unconstitutional. Yet, they miss another critical insight. Namely, just as the reversal of Roe wouldn’t ban abortion, a repeal of the Second Amendment would do virtually nothing to impact gun rights in most states.
All but six states currently enshrine the right to bear arms in their respective constitutions. This is due in large measure to the fact that, prior to Heller, such a right was considered “unincorporated” in an individual capacity. Likewise, prior to incorporation, it was understood that the federal Bill of Rights were mostly limits on federal power specifically, not state power. So, separate state-based constitutional rights were necessary to protect citizens from their state governments trying to pass restrictive laws that the federal government could not.
That’s why even something as dramatic (and politically impossible) as a repeal of the Second Amendment would do almost nothing from a practical standpoint. Furthermore, most federal legislative efforts to circumvent or curb this right would almost certainly be null and void on Tenth Amendment grounds. As a sidebar, I believe a post-Roe federal ban on abortion would have that same defect, and I would criticize that effort on those grounds.
In any event, Democrats looking to effect change regarding gun control should stop focusing on the Second Amendment or Congress, other than the composition of the Senate for purposes of judicial appointments. Instead, the blueprint the pro-life / judicial restraint advocates used to erode and ultimately destroy Roe is the correct one, not CNN town halls and calls for action by the federal Congress.
But the latter provides that oh-so-delicious instant gratification, whereas the former takes decades of incremental state-level advocacy and will-building. And they are not patient. Which brings me to my next point.
4. Democrats will now radicalize further in terms of attempting to reshape or destroy established American political structures.
For all of their supposed love of “norms” and “institutions,” and all their hyperventilating over January 6th as the darkest day in American history, the progressive wing of the Democratic Party openly advocates for modifying or abandoning norms and institutions any time such structures provide an obstacle to progressive ascendancy.
The end of Roe will immediately catalyze and amplify these efforts. What were generally fringe ideas will now be front-and-center for the foreseeable future. This trend will continue until Democrats have a couple of bad cycles in a row and perhaps regain the introspection I referenced earlier.
The most obvious and immediate measure will be the idea of packing the Supreme Court. This is where the margin in Dobbs will be critical. If it winds up 6-3, it’s going to be much harder to gain traction for expanding the Court, because simple math dictates that Congress would obviously have to add at least four seats(!) to create a new, anti-Dobbs majority.
On the other hand, a 5-4 split would mean that the addition of two seats might do the trick, which would boost politicians’ comfort level in pushing for an 11-seat Court. After all, it’s really just a one-seat expansion when you consider Merrick Garland’s “stolen” seat!
All kidding aside, Democrats would clearly have an easier time generating support for an expansion to 11 seats than they would expanding to 13.
With that said, both proposals would appear to be blatant power grabs to the median voter, and any attempt to expand the Court that advanced beyond mere outlier rhetoric would do far more harm than good for Democrats in November and beyond.
Although the filibuster no longer applies to judicial appointments thanks to the tireless, incredibly short-sighted work of Harry Reid, conversations around expanding the Court will also inevitably also revive talk of total abolition of the filibuster, a Senate rule that we’re supposed to believe is “a relic of the Jim Crow Era,” but only when used by Republicans.
Another sidebar: if the GOP were foolish enough to pursue some kind of nationwide abortion ban in 2023, I’m guessing Democrats would instantly rekindle their love affair with the filibuster.
Speaking of abolition, Democrats will remind us that we wouldn’t be in this position in the first place if that darned Electoral College didn’t exist! After all, two Democrats who would have served in recent years won the popular vote but did not win the presidency. That meant that they weren’t around to appoint justices to the current Court, which tilted the Court’s balance away from liberal judicial activism and “implied” rights.
This is the method to “fix” the Court’s composition from the other end of the equation. After all, progressives believe no Republican could ever again win the popular vote, so eliminating the Electoral College would effectively guarantee permanent Democratic occupancy of the White House.
Expect panicked progressives to scream and pant their way through inane interview segments on MSNBC and CNN in which they breathlessly advocate for these and other measures designed to change the structure or rules of American government because they didn’t get their way. To them, this should never happen, and any defeat is inherently unjust. They’ll do their best to “fix” that.
Yet, because most of these solutions will be unworkable for the foreseeable future, expect a hefty dose of commentary from every journalistic and progressive corner designed to undermine faith in these institutions further. I’m speaking here of columns on how the Senate is inherently “undemocratic,” written by people ignorant of the history of our country, and of retained sovereignty.
More pointedly, when the Court-packing effort falters, the amount of commentary questioning the “legitimacy” of the last several non-liberal justices’ appointments will explode (again). That rhetorical targeting will also help fuel the next aspect of the post-Roe aftermath.
5. Radical abortion activists will become more brazen and violent, and the mainstream media will provide them with extensive cover for these acts.
This one is happening as we speak. Since the leak, there have been dozens of examples of vandalism, harassment, and even violence targeting pro-life individuals and organizations. These incidents come in the wake of intimidating protests at the homes of Supreme Court justices, as well as a near-assassination attempt on Justice Brett Kavanaugh.
Two points to consider, here. First, these incidents will get worse in the immediate aftermath of Dobbs. We’ve already seen menacing materials making the rounds in Washington in advance of the ruling. It’s also possible we’ll see another series of violent protests as we did in the summer of 2020—albeit admittedly on a smaller scale. The pandemic was a contributing factor in fueling the scope and nature of the Floyd protests, and that pressure valve is open now.
Thus, it’s unlikely we’ll see anything as widespread as what happened in 2020. What we might see, though, is a protest movement that focuses mostly on D.C., if not the Court itself. We may just see a continuation of the harassment campaigns we’re seeing unfold now.
In any event, my second point is that 2020 also taught us how the media will—or won’t—cover these incidents. Any event that can be portrayed sympathetically will be in heavy rotation on the major broadcast and cable networks, FNC aside. Any event that inherently casts the pro-choice movement in a negative light will be minimized or ignored.
We’re seeing how this will play out in real time. The Kavanaugh assassination received modest coverage from major media outlets and quickly disappeared. The aforementioned attacks and harassment incidents go virtually unreported except for conservative outlets highlighting how much they’ve been minimized. Most commentators, at best, treated the ethics of protesting at justices’ homes as an open question, and, at worst, argued strongly in favor of the practice.
I absolutely hope I’m wrong about this aspect of the post-Roe world. However, if I’m correct, the silver lining of that very dark cloud would be that strident progressive activists would squander any potential sympathy and public goodwill once the general population starts seeing these sorts of acts play out.
As such, there are clear opportunities for both sides of this debate to squander the potential political advantage it might give them. For die-hard pro-choicers, harassing people (or worse) will erode support, even as CNN and the like say that such acts are “understandable” and so on.
On the other side, the GOP’s short-term setback could persist if they’re foolish enough to overplay a very good hand that took two generations to deal. A nationwide Congressional abortion ban, informal pro-life purity tests to run as a Republican, or threats to go after Obergefell or Griswold next could create a backlash potent enough to un-do all that has been won.
To be perfectly honest, at this moment in American history, it seems like both sides will screw up.
Still, making abortion a genuine issue in the political (rather than legal) arena for the first time in 50 years is going to shape the next decade of American politics in a number of ways—including in some ways that even I can’t guess.
What I can surmise is that Roe is dead. Dead, dead, dead.