Life After Roe
Abortion in the Age of Alito
In the aftermath of Roe vs. Wade, a peculiar dynamic has emerged in America’s debate over abortion. While advocates on both sides typically pitch the dispute as a moral one—a black-or-white struggle between the preservation of innocent life and a woman’s right to choose—in fact, the fiercest abortion-related battles have taken place in courtrooms. When the Supreme Court handed down its ruling for Roe vs. Wade in 1973, it transformed a social debate into a juridical one. But instead of settling the abortion controversy, Roe set the stage for three decades of legal challenges, both to the core ruling of Roe itself and to the incremental abortion restrictions that states have passed since. In the public consciousness, the face-off over Roe isn’t just one inning—it’s the whole ballgame.
This legal-moral equation has been especially powerful for the Christian Right, which since the mid-1970s has mounted a highly organized effort to place pro-life judges on the federal bench. For many in the movement, to be Christian demands more than personal or cultural opposition to abortion: it calls for the legal enshrinement of these beliefs at the state and federal levels. The impulse to elect pro-life lawmakers and appoint pro-life judges is so potent that any hesitation on the issue from a candidate or nominee invites suspicion and hostility. Such, at least, was the lesson many took away from Harriet Miers’s failed nomination.
But secularists, too, have perpetuated this legalistic model. Pro-choice advocates tend to paint a future world without Roe in apocalyptic terms, forecasting irreparable harm to the broader women’s rights agenda. The evolution of a solidly conservative Supreme Court—now perhaps upon us—has long been the movement’s doomsday scenario. No legislative limitation goes unchallenged in the courts, and no judicial nominee passes the Senate floor without coming under the intense scrutiny (or even filibuster threat) of pro-choicers. Roe, which activists misleadingly equat with the right to an abortion, is considered sacrosanct and must be preserved at all costs.
That Roe serves as the agreed-upon linchpin to the abortion debate has familiar, and sometimes unfortunate, consequencess. Largely a state and local matter before 1973, abortion has arguably turned into the most polarizing issue in federal politics. As a result, the so-called abortion “litmus test” has soured the judicial nomination process, reducing each experienced jurist to a single bullet point: his or her position on Roe. Many people assume that as goes Roe, so goes abortion.
Too bad this assumption is wrong.
In fact, the belief—or even the insinuation—that a conservative-minded court will bring an end to abortion stands in contrast to all legal, statistical, and political realities. It is a myth of public perception that both sides of the bitter ideological conflict have ceaselessly reinforced. In reality, Roe is only the most publicized front of abortion, not the key to its survival or eradication. There is no such holy grail.
If the intention of the left is truly to make abortion as easy and accessible to as many women as possible, and if the intention of the right is to reduce the incidence of abortion as much as possible, then they would both do well to drop their obsession with Roe.
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