Roe: Considering the Counterfactual

At The New York Times, Linda Greenhouse notices an under-appreciated aspect of the Supreme Court’s decision to take up a Mississippi case that it could use to overturn or restrict Roe. v. Wade. She writes that legislators in pro-life states, who have been multiplying restrictions on abortion to test Roe, will now be accountable for them:

Ever since the 2010 election ushered new Republican majorities into state legislatures, politicians there have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people’s representatives from having to own their actions.

That is true, and Greenhouse correctly notes that majorities even in some of the most staunchly pro-life states have rejected some of the more severe restrictions on abortion. What Greenhouse overlooks is how this state of affairs came to be, which is that Roe itself licensed and encouraged it. By taking the issue away from voters, Roe has protected elected officials from accountability for either the political or practical consequences of legislating. In other words, why have state legislatures tended to the extremes? Because there are no political controls on, or practical consequences for, their behavior.

Roe has protected legislation at the edges of the issue, and if the case collapses, those restrictions may become law. Greenhouse does not ask the counterfactual, but it is worth considering. Without Roe distorting the politics of the issue in the first place, the public consensus that has developed–which is remarkably balanced, recognizing that abortion is more complicated than either extreme acknowledges–might have taken hold. Instead, the extremes on both sides have defined the issue. If Roe falls, they prevail. That is less a case for defending Roe, as Greenhouse does, than for not transferring social controversies to the courts in the first place.

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