Don't jump to conclusions about the politics of ending Roe
We have, via a leak, the draft majority opinion of a Supreme Court ruling overturning Roe v. Wade and the half-century-old constitutional right to abortion. The opinion is by Justice Samuel Alito, in a case from Mississippi, and would presumably be joined by four others; the reporting is that Chief Justice John Roberts would gut Roe, but not overturn it, while the three liberal justices would preserve it. Experts and the silence of the court suggest that the leaked draft is genuine. The huge caveat is that draft opinions usually change before they are finalised.
Some initial reactions:
• Politicians and pundits tend to hype things. Not this. Overturning Roe would be massively important. As one who believes Roe was correctly decided in 1973, the decision is about whether or not women are to be full citizens in the republic, entitled to control over their own bodies. More broadly, the general right to privacy — now at least endangered, and perhaps hanging by a thread — is about both the rights of citizens to be left alone from government intrusion into their intimate lives, but also about the rights of all citizens to participate in the public sphere equally.
• About public opinion: most people want Roe to be preserved, public opinion polls show. Most people are not absolutists on the general issue of abortion; they favour some restrictions while also believing that there is a fundamental right involved. That’s all pretty clear from decades of polling, which for the most part has been fairly stable. It's also clear that while slim minorities on both sides have cared intensely about the issue, most Americans have not considered it a top-tier policy question — and on that part of it, there's simply no way to know whether, and how, the end of Roe would make the political combat more or less intense.
• Similarly, it's impossible to predict what effect, if any, the decision would have on the midterm elections this November, let alone future presidential elections. It could increase intensity, and therefore turnout — in one party, both parties or neither. Normally, Supreme Court decisions, even extremely important ones, have little direct effect on elections. Perhaps that will be the case this time. Perhaps not.
• On the legislative front, a Bill to codify Roe passed the House of Representatives but doesn't appear to have 50 votes in the Senate, with West Virginia Democrat Joe Manchin opposed and little sign that two Republicans who sometimes support abortion rights, Maine’s Susan Collins and Alaska's Lisa Murkowski, support the Bill pro-choice Democrats have put forward. Some Democrats are talking about getting rid of the filibuster in order to pass that Bill, or another to expand the Supreme Court, but if you don't have a simple majority, the filibuster isn’t the problem. And even if a compromise on substance can be reached with Collins and Murkowski, it's unlikely that the two Republicans would join pro-choice Democrats in eliminating the filibuster. Republicans, meanwhile, will surely seek to pass a nationwide ban the next time they have majorities in both chambers of Congress and a Republican in the White House. Expect most of them to be ready to eliminate or poke holes in the legislative filibuster to get it passed; whether they will succeed depends on the numbers they have at the time.
• The one thing that does seem like a fairly safe bet is that abortion will be a higher-salience policy question, at least for now, in state elections. That said, it's also fair to say that we’ve seen major fights over abortion access in state legislatures and state courts for decades now, so it's not as if this is entirely new.
• I've seen a lot of liberal commentary pointing to the chances that contraception, same-sex marriage and even rights to same-sex sexual relations would be targeted next. It's pretty clear that at least two, and perhaps as many as five of the current justices, would overturn the key decisions establishing all of those rights and more. No one should minimise the possibility that this could happen. However, it's also true that abortion is different; it's been the defining social issue — perhaps the defining issue, period — of the Republican Party for some 40 years. Few Republican politicians are going to feel comfortable resisting the party's maximalists on abortion policy. That could turn out to be the case for other privacy questions, but it might not. Political action will determine that question if the court does act, and that isn't predictable.
• I’ve seen multiple plausible arguments that the leak could have come from supporters or opponents of the decision. I don't much care, and while it’s possible that the leak could have consequences within the court, I think it’s relatively unlikely that it will matter in any important ways, including on any remaining deliberations over the final opinion, that the draft was published early. What’s important here is the decision.
• Remember that we have a draft, not a final decision. It may change. It’s even possible that it could change quite a bit. That said, the bottom line has always been that the main question, given the composition of the court, was whether the Republican majority would repeal Roe or hollow it out, leaving it as an empty letter. What we have appears to be at one extreme of that spectrum, and that matters a lot about what it signals about the future of this court, both for privacy decisions and more. But even if Alito is forced to retreat — and even in the unlikely event that he loses his majority and the decision swings to the other end of the plausible outcomes — the constitutional right to abortion will be gone.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics