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Late Monday, Politico broke the news story that the Supreme Court was poised to strike down the governing decisions on abortion, Roe v. Wade, and the subsequent decision from nearly 30 years later, Planned Parenthood v. Casey.
Writing for the still undefined majority, Justice Samuel Alito laid out a devastating case against the now 50 year-old jurisprudence related to abortion in the United States. “Roe was egregiously wrong from the start,” he wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
That return will soon happen, as I think it should. Generations of activists on both sides have anticipated the possibility of this day with either dread or hope, and now it has finally come. Or rather, it will come officially when the majority opinion is officially announced later this summer.
There is very little about abortion, either for or against, that has not already been argued. Nearly all of us have formed our opinion on the matter, and no points of logic or clever turns of phrase are going to shift anyone’s point of view. It is more firmly entrenched than any other important issue in America.
Obviously, the decision to overturn five decades of established law is not without significant consequences.
First, the decision will not outlaw abortion outright, as many people seem to think that it will. In reality, what a reversal of Roe and Casey will do is remove the prior nationwide constitutional protection afforded to the procedure, putting the legality (or lack thereof) into the realm of state legislative chambers.
According to the Center for Reproductive Rights, 14 states have enacted laws that will protect abortion rights in the event that Roe and Casey are overturned, while an additional seven have actually passed statutes (or constitutional provisions) that create additional access to abortion care.
Maine is one of the states that has protected access to abortion, and indeed has some of the more liberal abortion laws in the entire country, including public funding, and private insurance requirements. This means that once the decision is handed down, Maine will not operate any differently than it did prior.
Conversely, in 13 states, “trigger laws” have been passed which are designed to ban abortion in the event that Roe and Casey are overturned. Meanwhile, in many states there will be prolonged and very passionate debates about whether to ban it, protect it, or strike some kind of middle ground.
In other words, this is about to become a very hot political issue, in ways that abortion never has been, despite its divisive nature. Throughout the last five decades, politicians have had a very convenient security blanket that has allowed them to signal their virtue on the issue — in either direction — without having to risk sinking real political capital into the issue.
That is about to change.
Will pro-choice Democrats in deep-south states risk their electability to campaign on the issue, and try to enact legal protections? Will pro-life Republicans in blue states start talking about wanting to ban it? Doing either has been virtually pointless, but now suddenly there is actual potential for elections to affect the issue in these states.
What is still unclear, though, is the extent to which this will actually change the electorate. I have lived long enough to have heard political prognosticators tell me that abortion and the Supreme Court were going to fundamentally change the political winds, only to see the exact opposite happen.
In 2016, Mitch McConnell’s denial of hearing for President Barack Obama’s pick for the Supreme Court Merrick Garland was supposed to make abortion and the court a primary motivating issue for voters. But voters collectively shrugged at the pitch. Surveys conducted by the Pew Research Center showed that “Supreme Court appointments” were the ninth most important issue for voters in 2016, and “abortion” was thirteenth, and Hillary Clinton ultimately lost to Donald Trump. In 2020, Susan Collins’ vote for Brett Kavanaugh caused her Democratic challenger Sara Gideon to try to make it the main line of attack against her, and again voters did not respond to the apocalyptic rhetoric.
Now that the decision will be real rather than speculative, will that change the calculus? I have my doubts. I think it will energize extreme partisans on the left, and on the right, and the people in the middle will do what they always have done and weigh that issue against the dozens of other issues that are important to them, ultimately voting for who they would have anyway.
Either way, we’re about to find out whether or not the politics of abortion will change the nature of this election, and with it all future elections. If it doesn’t happen now, it never will.