In many of the 50 states, and ultimately in Congress, the overturning of Roe would probably ignite one of the most explosive political battles since the civil rights movement, if not the Civil War. —Jeffrey Rosen, "The Day After Roe," The Atlantic, June 2006.
Rosen was 16 years ahead of schedule. Not only was his essay on the political and legal consequences of overturning Roe v. Wade prescient. Its speculative insights apply to today’s post-Roe world.
The lengthy and complex piece defies summary. It demands a fair reading. One of its major arguments is that the electorate’s view of abortion has long been consistent: As a whole, most Americans support abortion access early in a pregnancy. But they are increasingly willing to entertain restrictions on the procedure as a fetus develops—so long as exceptions are made for cases of rape, incest, and life of the mother. They also oppose taxpayer funding for abortions.
This consensus is reflected in the Partial Birth Abortion Ban Act of 2003 and in the "Hyde Amendment" barring direct federal funding of abortion. Put down the U.S. Code, however, and things become complicated.
State law is lopsided. There are no-restrictions states such as California and New York, and there are no-exceptions states such as South Dakota and Idaho. Many states had "trigger laws" banning abortion that went into effect when Roe disappeared.
The difference between the federal government’s mushy middle ground and state governments’ extreme landscapes is a paradox of abortion politics in America. And it’s not the only paradox.
For example: If we distinguish between abortion policy at the federal and state levels, so must we also distinguish between direct democracy and representative democracy. The two systems produce divergent outcomes.
Wisconsin recently elected a State Supreme Court judge, Janet Protasiewicz, who based her campaign on opposition to the no-exceptions ban that has been in place in her state since June 2022. Yet the same day as Protasiewicz’s big win, voters in Wisconsin’s eighth state Senate district narrowly elected a conservative, Dan Knodl. That gave the GOP a pro-life legislative supermajority. And in November 2022, pro-life senator Ron Johnson (R.) also won a narrow reelection.
What’s going on? Where voters are given the opportunity to vote up or down, they will vote in favor of abortion access. That’s what happened with the Protasiewicz race. It’s what happened last year with ballot initiatives in six states, including in red states such as Kansas and Montana.
However: When voters are asked to choose between alternative candidates, other factors come into play. Pro-choice candidates might have an advantage if, like Protasiewicz, they turn their contests into pseudo-referenda on abortion or if, like Rep. Abigail Spanberger (D., Va.), they define or expose their opponent as outside the national consensus.
If neither condition applies, then abortion becomes one of many variables in a voter’s electoral calculus. Abortion loses its "salience." The economy, crime, the border, education, health care—these subjects become just as, or even more, important than abortion access. Incumbency and candidate quality matter too.
Those who argue that the GOP is doomed post-Roe forget that Republicans won a majority of the House popular vote last year. They overlook the fact that, prior to Election Day, Republican governors Brian Kemp of Georgia, Greg Abbott of Texas, Kim Reynolds of Iowa, and Mike DeWine of Ohio signed into law first-trimester abortions bans—so-called heartbeat bills. And they won reelection by 7 points, 11 points, 18 points, and 25 points, respectively.
You can understand, then, why Florida governor Ron DeSantis (R.) signed a six-week abortion ban, including some exceptions, into law. The cost of thwarting or vetoing the bill would have been much higher than in following the path set by fellow GOP governors. What’s more difficult to gauge is how abortion referenda will interact with non-abortion-focused campaigns. What would have happened, for example, if Protasiewicz had been on the ballot in 2022? Would Ron Johnson still be in the Senate?
We do know that Michigan’s Proposition 3, establishing a state constitutional right to abortion, ran ahead of incumbent governor Gretchen Whitmer (D.). And Whitmer won by 11 points. Prop 3 carried the Democrats into a state legislative majority, as well.
It would be in the Democrats’ interests, therefore, to hold referenda in key states next year. Which is exactly what they want to do in states such as Ohio.
If Democrats use pro-choice referenda to boost turnout for their presidential nominee, it would be a historic irony. Their strategy would be the same as opponents of same-sex marriage in 2004. Back then, initiatives forbidding gay marriage appeared on ballots in 11 states. The bans won everywhere. And George W. Bush won in 10 of the 11 states.
Bush’s two Supreme Court appointments occurred during his second term. They became the news hook for Jeffrey Rosen’s Atlantic article. "For what it’s worth," Rosen said at one point, "I wouldn’t bet on Chief Justice Roberts's siding unequivocally with the anti-Roe forces." Indeed. "Republicans," Rosen observed later, "might get too many Court appointment opportunities to prolong this exquisite balancing act, and Roe could indeed fall."
The fall was the result of former president Donald Trump’s three appointments to the Court. Yet Trump, a crucial agent in the demise of Roe v. Wade, has been critical of the pro-life movement since the 2022 election. Republicans failed to win larger majorities, Trump wrote in January, because the "‘abortion issue’" was "poorly handled by many Republicans, especially those that firmly insisted on No Exceptions, even in the case of Rape, Incest, or Life of the Mother, that lost large numbers of Voters."
More recently a (thinly sourced) report in the Guardian suggests that Trump is opposed to federal abortion legislation such as the 15-week ban sponsored by Senator Lindsey Graham (R., S.C.) and backed by former vice president Mike Pence.
On abortion, as on entitlements, Trump is closer to the center of the general electorate than is Pence, or for that matter DeSantis. What would it mean if Trump, the Republican presidential frontrunner, opposes federal abortion restrictions, or runs against the pro-life wing of his party? Which force would prove more powerful—Trump’s personality or institutional tradition?
I think we know the answer. Trump has modified the GOP before. And there is nothing written in stone that says the Republican Party must be pro-life. When Roe was decided, George H.W. Bush and Gerald Ford were ambivalent about abortion. First Lady Betty Ford was outspokenly pro-choice. It wasn’t until 1980 that the Republican platform became firmly pro-life.
That commitment lasted for more than 40 years. In 2020, however, there was no GOP platform. And if Trump is the nominee, there probably won’t be one in 2024. Donald Trump is the platform. He’s what you’re going to get if you vote Republican.
And by November 5, 2024, Trump’s views on abortion may be at variance not only with the historical legacy of the pro-life movement but with what the movement is saying at this very moment. And pro-life Republicans could well vote for him anyway. And he could well win a second term. In which case, not only would Donald Trump be partly responsible for ending Roe. He also would end up fundamentally revising the alliance between the pro-life movement and the GOP. On his terms.
Jeff Rosen didn’t see that coming.