Emerging From the Hedged Roe

Larison argues, contra Linker (and me), that overturning Roe wouldn’t end the culture wars with respect to abortion, but would instead merely decentralize them and make pro-life voters even more solidly Republican:

It would decentralize the culture war and make it part of democratic debate in each state, which means that the issue would retreat from debates in presidential elections and in Congress but become even more intense as an issue in state legislative and gubernatorial elections. It might be for the next few decades that most states would maintain legalized abortion with few restrictions, but the pressure to change that in many states would be constant and intense. The more politicized and involved in the democratic process a contentious issue becomes, the more it becomes the basis for identity politics and polarization. There is certain “damned if you do, damned if you don’t” quality to this: keeping the issue as a matter for the judiciary and keeping Roe in place generates tremendous opposition and perpetuates the culture war, but overturning Roe would probably intensify the culture war.

I take Larison’s point, but I’m not convinced.  The problem I have with this argument is that it ignores the way in which Roe (and now Casey)’s arbitrary line drawing has the effect of uniting both the pro-life and pro-choice sides of the issue.  As I said in my previous post on this issue, this line drawing ensures that the federal courts are going to have to continue revisiting Roe almost ad infinitum, which guarantees that the issue will remain on center stage in the culture wars for decades to come, even as it continues to accelerate the politicization of the judiciary.   

But it also does something else: by drawing arbitrary lines, Roe ensures that everyone with an opinion must either identify as “pro-choice” or “pro-life,” even though as a policy matter, very few Americans favor unfettered access to abortion or near-absolute restrictions on abortion.  By casting the debate as “pro-choice” vs. “pro-life,” Roe ensures that the only voices with influence in the debate are these relatively few absolutists, who more or less win by default the portions of the mushy middle that are on their side of the arbitrary Roe/Casey lines.

If you overturn Roe and send the issue back to the states, you put an end to this.  In most places, the pro-choice and pro-life absolutists will no longer find themselves with quite as much power, as the majority in the mushy middle will wind up crafting most state regulations.  Simply put, sending abortion back to the states would have the effect of drastically reducing the unity that exists within the two identity groups. 

In some states, you would no doubt wind up with the absolutists of one variety or another dominating the debate and securing pretty clear victories.  But in those states, it’s probably safe to assume that the number of absolutists on the losing side will be very small and not terribly vocal to begin with.  This means that even in those states that implement the most extreme policies (of one variety or another), there really won’t be the amount of contentiousness that we see on the issue on a national scale, where the absolutists of both sides are more or less in equilibrium.

And while you can certainly expect the pro-choice movement to mount a pretty vocal campaign to reinstate Roe, this campaign will be unlikely to succeed and I think will peter out within a few years.  First, any decision overturning Roe would of necessity present a legal clarity that would more or less remove the issue from the federal courts system, thereby preventing any serious challenges to the new regime that would have a legitimate chance to reinstate Roe.  Second is the fact that in the states where the bulk of pro-choicers reside, the pro-choice side would likely achieve quite satisfactory legislative results, lessening the motive to vocally push to reinstate Roe. 

But, as I suggest above, the most important thing is that sending abortion back to the states would drastically split both the “pro-choice” and “pro-life” sides of the debate, as those majority in the mushy middle no longer will need to identify strictly with either side.

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6 thoughts on “Emerging From the Hedged Roe

  1. I’m having a hard time seeing past my pet positions. Larison might be right. Instead of defanging the culture war, it might present a new map analogous to slave and non slave states that would only fuel more acrimony. This may or may not be beneficial to my pet positions but interesting none the less.

    From a practical stand point it might be better to keep all the social arguments tied together so that those like matoko can continue to beat the Bush/Palin contingency about the ears with. If that element is already in its death throws it might be best to not interfere.

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  2. the effect of uniting both the pro-life and pro-choice sides of the issue.

    But this simply isn’t true.
    Submitted empirical data–the epic fail of Colorado Prop 48.
    There the electorate united against pro-life causes, 74% to 26%.

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  3. I think pancascadian is right….the seven states with red majorities would implement abortion restriction, and that would just lead to another “intervention” by the Supremes.
    Giant waste of time.
    Surrender now, dorothies.

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  4. “In most places, the pro-choice and pro-life absolutists will no longer find themselves with quite as much power, as the majority in the mushy middle will wind up crafting most state regulations.” This sounds just painfully naive to me. Putting aside the rather loaded term “absolutist” here, you’re still going to have lots of people in any state with deeply felt commitments about how abortion should be very widely available, or utterly prohibited. And these are the people whose primary and general election votes will be determined largely by politicians’ stances with regard to abortion matters. Part of that mushiness of the mushy middle is that they tend not to place abortion issues too front-and-center in their political deliberations, and so their votes will be gotten at through other means.

    I think the biggest mistake in this discussion is the idea that the lines drawn in Roe/Casey can somehow be de-arbitrarized. They can’t. Any laws here will need _some_ way of drawing lines, and we really have no idea where such lines can reasonably be drawn. A large majority of Americans thinks that drawing a bright line at conception is a bad idea; an even larger marjority of Americans (i.e., practically all of them) thinks that drawing the line at actual birth is a bad idea. And there just aren’t any other candidates for bright lines to be found between those two points.

    It’s a misdiagnosis — one that the pro-life side has been happy to promulgate for a while — that the haziness of Roe/Casey is a byproduct of being decided by the courts. It’s not. It’s a byproduct of the fact that we don’t know how to decide when personhood begins. Don’t blame the courts for having failed to solve a nigh-well unsolvable philosophical problem. They had to solve a legal problem — lines had to go in _somewhere_ — and there’s really no reason at all to think that a political/legislative process would have found better lines to draw, because, again, there _aren’t_ any better lines to draw.

    Another mistake in this discussion is the idea that overturning Roe would simply “throw it back to the states”. It wouldn’t, as pro-life forces would immediately try to mobilize for various sorts of national laws banning abortions. Every national election would still be a battle about the permissibility of abortion, and under what circumstances.

    Long story short: this political issue just plain isn’t going away, and the idea that it is a problem of judicial procedure and not irresolvable philosophical differences is deeply mistaken.

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  5. an even larger marjority of Americans (i.e., practically all of them) thinks that drawing the line at actual birth is a bad idea.

    Look…..I feel like a talking parrot here, but that simply doesnt translate into a grassroots movement to strike down Roe.
    An even greater majority is against striking down Roe.
    So give up already.
    Like I said, the culture war is over.
    Evolutionary Theory of Culture and the evolution of population demographics has ended it.

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