April 24, 2006,
I have an article in the latest New Republic arguing that the conventional wisdom about the political effects of overturning Roe that it would be a disaster for pro-life Republicans is “probably wrong.” (I elaborate on that argument, adding a few twists, in Party of Death.)
Cass Sunstein now says that I “may be right.” This is progress: In his book Radicals in Robes, Sunstein was a lot more certain, writing that “everyone knows” that America would vote for pro-choicers if Roe fell.
But Sunstein isn’t willing to let go of the conventional wisdom just yet. He makes two points in its favor. First, he says that Roe’s overthrow would mobilize pro-choicers. He’s right about that, although I think some of the initial energy would dissipate as it became clear that Roe’s demise had not illegalized abortion nationally. But if pro-lifers adopted an incrementalist strategy in state legislatures a crucial if, I’ll concede it is hard to imagine that pro-choicers would be able to prevail. There just aren’t enough supporters of late-term abortion to mobilize.
Second, Sunstein writes, Republicans seem to believe the conventional wisdom, as evidenced by their failure to take serious steps to overturn Roe. “[T]hey have made no serious efforts to amend the Constitution to protect fetal life, and under Republican presidents, most Supreme Court nominees have not been clear opponents of the Court’s decision.”
But the political consequences of making a serious effort to amend the Constitution to outlaw abortion nationally would be different from the consequences of a judicial overturning of Roe not least because the attempted amendment, given the extremely high bar the Constitution sets for amendments, would likely fail. The amendment would also, as Sunstein knows, be more far-reaching in its effects than a decision overturning Roe. A Republican could think it unwise to hold a vote on an amendment while being enthusiastic about the prospect that the Court would overturn Roe.
It is true that of the seven justices appointed by Republicans since the party made its alliance with pro-lifers, three have voted to keep Roe and only two have voted to overturn it. (Two, Roberts and Alito, are question marks.) Here is one possible explanation for this fact. Many people believe that Roe v. Wade protects a much more limited right to abortion than it actually does, and wrongly believe that overturning Roe would prohibit all abortions. As a result, Roe or rather, a mythological version of it is popular (especially when pollsters misdescribe it in their questions, as they frequently do). As a further result, getting “clear opponents” of Roe confirmed is difficult, and Republican presidents have not made the effort. This explanation, if correct, does not suggest that restoring legislative authority over abortion would, when it happened, lead to a big backlash against Republicans.
I think this theory of a widely misunderstood Roe explains a lot of the otherwise puzzling aspects of our abortion politics. But it doesn’t explain everything, and Sunstein is surely right to suggest that many Republicans don’t want Roe to be overturned. But that isn’t necessarily a point in favor of the wisdom of the conventional wisdom; it’s a point in favor of its conventionality. Many Republicans buy the conventional wisdom that ending Roe would hurt them badly. I think they and Sunstein are probably wrong.
Here’s hoping the justices let us find out for sure.
Ramesh Ponnuru, an NR senior editor, is author of The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life.