The journalistic scoop of the decade may not have revealed as much as people assumed. At 8:32 p.m. on the evening of May 2, Politico reporters Josh Gerstein and Alexander Ward broke the news that a Supreme Court majority had voted a few months before to overturn the Roe v. Wade decision and return abortion policy to the states. Moreover, in an unprecedented disclosure, their story contained Associate Justice Samuel Alito’s 98-page draft opinion, dated February 10, in its entirety.
The staggering news left many questions unanswered. “It’s unclear if there have been subsequent changes to the draft,” Gerstein and Ward wrote. It is also unclear, as I write a few days after Politico’s bombshell, who was responsible for the leaked decision. Chief Justice John Roberts confirmed the authenticity of Alito’s draft, while also reminding the public that no ruling is final until the Court issues an official release.
The possibility remains that Alito’s opinion has been or is being changed. Also, since February, one or more justices may have switched votes to uphold Roe. No one knows. The best response to the Politico scoop, then, is to assume a posture of radical humility. Yes, there is a significant chance that abortion law in the United States soon will be subject to democratic procedures and accountability for the first time in a half century, but we do not know for sure. And we have no inkling of how such a change might affect American politics.
Yet humility is not exactly in fashion these days. Democrats and pro-choice Republicans are convinced that the end of a judicially enforced right to abortion throughout the duration of a pregnancy will give President Biden’s beleaguered party a fighting chance in this year’s midterm elections. If the Alito majority holds, this argument runs, a campaign that was shaping up to be a referendum on Biden’s handling of the economy, the border, crime, and education will turn into a choice between candidates who want to preserve “a woman’s right to choose” and candidates who want to “punish women and take away their rights to make decisions about their own bodies.” (The quotes come from Vice President Harris.)
Not long after Politico’s story was published, House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer released a joint statement condemning Alito’s draft opinion as an “abomination” and vowing to codify Roe into federal law. Democrats dusted off the charges of a “Republican war on women,” last used during the 2012 campaign, as well as its debate over coverage for contraception in taxpayer-subsidized health-insurance plans. The progressive left warned that the Court’s next targets were precedents upholding rights to same-sex marriage, access to birth control, and even interracial marriage—despite Justice Alito’s unequivocal statement that his opinion applies to Roe alone and that abortion is unique because unlike other hot-button issues it involves the taking of a human life. Other analysts noted that Republicans seemed more interested in condemning the leak of the decision than in defending its substance. Perhaps that meant the GOP is uncomfortable with, and worried about fallout from, a post-Roe world.
Not without reason. Polls show that Americans oppose a Supreme Court reversal of Roe v. Wade. “Americans appear to be simultaneously pro-life and pro-choice,” write my American Enterprise Institute colleagues Karlyn Bowman and Samantha Goldstein. While recognizing that abortion involves killing a human being in the womb, Americans also tell pollsters that the decision to obtain an abortion is a personal one best left to the mother. While supporting the legality of abortion in the first trimester of a pregnancy, Americans also say that they would restrict or outlaw abortion in the second and third trimesters.
Navigating this complicated terrain is a difficult exercise for anybody, much less a politician. In 2012, Republicans lost winnable Senate seats in Missouri and Indiana because the party nominated candidates who frittered away their futures and a GOP majority on egregious and ridiculous discussions of “legitimate rape.” Ten years later, with congressional majorities in its grasp, the party does not want to make the same mistake.
There is no telling how a candidate will behave under the pressure of a campaign. But it is worth noting that the blunders in Missouri and Indiana happened while Roe was still the law of the land. Pro-life and pro-choice politicians have bungled the issue of abortion before and during the Roe era. It would be silly to think that all of them will handle the topic with the suitable combination of sensitivity, delicacy, and clarity now.
Furthermore, having spent decades seeking to overturn Roe and reduce the number of abortions performed in the United States, Republicans would be aloof, feckless, and hypocritical if they downplayed or abandoned the pro-life cause on the verge of its great triumph. Democrats would take the offensive. And the animosity between the populist grassroots and what remains of the Republican establishment would grow.
Just as the Politico leak may have been less revelatory than it first appeared, the political fallout from a reversal of Roe may be less than the chattering class imagines. I was among the pundits who argued that Texas governor Greg Abbott threw the Democrats a lifeline in September 2021 when a law he had signed went into effect, banning abortion after a fetal heartbeat is detected around five or six weeks. Abortion effectively has been banned in Texas ever since. Yet the political blowback has been negligible. Glenn Youngkin won in Virginia, Republicans came close to unseating New Jersey governor Phil Murphy, and Governor Abbott is on a glide path to reelection. President Biden was unpopular in averages of polls prior to the Politico exclusive. He remained unpopular after it.
Voter intensity plays a greater role in campaign dynamics than voter opinion. Voters may not agree with a Supreme Court decision overturning Roe, but how great a factor might such a decision be when they visit the polls? Democrats hope that, after Roe, abortion rights will vault to the top of voters’ concerns. Maybe. But it is just as likely that voters will care more about rising inflation and a declining standard of living than the status of abortion law in places where they do not live. The media, after all, can focus on only one issue at a time. Will the Democrats be able to sustain public outrage at the Supreme Court and the pro-life Republicans over five months, or will we be talking about something else, something completely off the radar screen, in the final days before the midterm?
How the public judges the abortion debate depends a lot on the circumstances. Is the fight over restrictions early in a pregnancy, which puts pro-lifers at a disadvantage, or over late-term abortions, which puts the pro-choice side on defense? Is a candidate able to defend his or her position reasonably and intelligibly? Which faction seems more fanatical and threatening at a given moment? The answers to such questions will determine how great a price, if any, Republicans pay for a Supreme Court decision overturning Roe.
The fact that such questions are unanswerable is precisely the point. The rough and tumble of electoral politics, the unpredictability, contingency, randomness, and muddled compromises associated with legislative wheeling and dealing, will all be part of the new politics of abortion when and if the issue returns to the public square. Where it belongs.
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