Getting rid of Roe v Wade presents the Rs with obvious political problems. This is true in the sense that that there could be a backlash hurting their side’s elected officials. But it’s also true that neither of the two rationales their justices can use to get rid of Roe v Wade can be employed without creating all sorts of problems for them.
The status quo before Roe v Wade
Come at this from the political angle, and the obvious thing that you would think their side could do to minimize the political downside to them for getting rid of Roe v Wade, would be to decide to just return to the status quo ante Roe. Call it the SQAR for short. In that world of SQAR, abortion would be legal in some states, and illegal in others. States where abortion rights were popular, blue states presumably, would quickly legalize abortion, if it’s not already legal there by existing law, while red states would pass laws to make it illegal, should that not already be the case.
People will still be unhappy, but, inherent in the idea of letting states decide individually, is the fact that abortion is only made illegal in states where abortion rights are not popular, and abortion is only allowed to continue in states where the anti-abortion opinion is the minority side of the question. A lot fewer people are made unhappy than if abortion were just made illegal everywhere.
Of course, anti-abortion fanatics will still be unhappy. They want abortion illegal everywhere in the US, not just in their state. But that’s a plus for their political anglers, isn’t it? Getting rid of Roe v Wade this way can be portrayed as moderate, a compromise. Both sides get something, both sides get places in the US where their views on the matter are the law.
For this reason, a lot of the commentary you see right now just takes it for granted that the new SCOTUS majority is only going to take us back to the SQAR. They will settle for just making Roe v Wade disappear, at least for now. Their court majority are assumed to be political anglers, not anti-abortion fanatics.
Ending Abortion Everywhere
Come at this question from the angle of the law, however, and it’s obvious that the simple and direct thing to do is end abortion everywhere in the US.
Roe v Wade was decided by weighing competing rights and interests. The decision legalized abortion everywhere in the US, because it found that the woman’s right to deny use of her womb to another overrode the fetus’s right to the free use of the womb. If you’re going to overturn Roe v Wade, it would seem that you have to claim that it came to an incorrect result in its analysis of competing rights, and substitute a new analysis with a different result. Presumably, you have to say, that, no, the fetus has a right to free use of the womb until it is delivered, that outweighs the women’s right to control her own womb.
But if that’s your analysis, it applies everywhere in the US. Women and fetuses in the state of Utah have the same rights and interests as women and fetuses in California, so you’re stuck, however politically inconvenient, making one law cover both states, and the 48 others as well.
You’ve made the anti-abortion fanatics happy if you get rid of Roe v Wade this way, but everyone else, abortion rights supporters plus swing voters put off by giving one side an uncompromised and absolute victory, is unhappy. Very unhappy, and the only recourse abortion rights supporters have left is to get rid of you, R SCOTUS majority. They can’t just move to another state, they have to get rid of you in order to bring back Roe v Wade.
Make Abortion a Political Question
You can’t make time go in reverse. The state of the legal universe in respect to abortion is sort of like the physical universe before the Big Bang, or perhaps the health of Schrodinger’s cat in that box before you open it up. Abortion laws had not yet been subjected to an analysis by the Court to reach a decision on which of the competing rights and interests had to be respected throughout the legal universe of the US. Some states made abortion illegal, and some made it legal. But once the Court does the analysis, the box is opened, the Big Bang has happened, and you can’t put the cat back in the box or squeeze the universe back to its pre-Big Bang state. The women’s interest prevail, or those of the fetus, and you can decide either way, but you can’t decide that both do, fetus in some states, women in others.
Well, you can’t do that if you’re SCOTUS unless you choose to forego your authority and deny your responsibility to decide the question. You can say that this is a political question, or a 10th Amendment question — however you want to phrase your dodge — beyond the competence of a mere federal court. It was a state matter, not a federal matter, for countless centuries and millennia in that long-lost SQAR, and that’s what we’re going back to.
Set aside for a moment the violation of fundamental laws of physics inherent in the idea that SCOTUS is going to give up power over any question. Of course Federalist Society tools go on and on about their judicial modesty, as some abstract and general principle. But if this principle guides their decisions on the bench, boy, is it about the most abstract and general principle the mind of man has ever devised, so subtle as to be hitherto undetectable in their actual observed behavior on the bench. Modest they have not been. Judicial passivity we do not see emanate from them. Stare decisis is a joke to them. But, maybe, this is the case that is so fraught that actually being modest and stepping back from making a decision, declaring that federal courts cannot decide this issue, fits their political needs. They get the politically less toxic result, abortion remaining legal where it is most popular, and they get at least some deniability to throw up to defend themselves from people who are still unhappy with the outcome. “It’s not us! Go picket outside the Utah lege, or the Utah courts!”
A House Divided Against Itself
Short term, ducking the issue would clearly be of political benefit to their side at least, and, arguably, at least be better for women than if the new SCOTUS majority just made abortion illegal every where in the US. We have the makings of a compromise here! We love compromise in this country.
But long term, it would start us down the road to making abortion a truly explosive point of political contention. Red states would go overboard in not only oppressing their own women citizens, but in trying their best to persecute abortion everywhere in the US. States that view abortion as murder and those that view it as every woman’s inalienable right are simply not going to be able to extend full faith and credit to each others’ legal regimes. Utah will insist that murder is still murder even if committed in California, and will not be able to refrain from trying to impose consequences. When red or blue get the federal trifecta, both will be compelled to try to drag the federal govt into this irrepressible conflict, and we will add nullification (SCOTUS having dodged this question by going Tenther on us) to denial of full faith and credit. This unsupportable idea that we can have 51 different versions of the law, at least over matters as fundamental as the definition of murder and the basic human right to control one’s own body, will end in war, as surely as war came over slavery.