Putting the Roe v. Wade decision in political and historical context

If an anti-abortion Mississippi law is upheld by the Supreme Court, legal battles will shift to Democrat-controlled states. The law will still not be ‘settled.’

by | December 19, 2021

The decision on abortion by the justices of the U.S. Supreme Court will affect both national politics and the court’s own standing. Photo by Sean Pavone/iStock.com.

Abortion has again arrived at the U.S. Supreme Court. The issue boils down to whether the court will abandon its Roe v. Wade ruling that abortion is a federally protected right, which would leave the issue to each state.

Its decision could place abortion at the center of next year’s political campaigns.

Abortion may be the single most controversial national issue, but there is much more behind the conflict than the question before the court. Because abortion has been so heavily politicized, its decision will affect both national politics and the court’s own standing.

The formal question is whether the Constitution protects a woman’s right to have an abortion. Roe supporters maintain that the natural right of a person to control their own body is protected. Opponents argue that abortion ends the rights of another person, the fetus.

When people assert conflicting rights, they turn to government to determine or reconcile them. Congress has avoided action. In effect, the political decision that was too hot for Congress was passed to the Supreme Court, putting it in the middle of the controversy.

In Roe and in Casey, a later decision, the court ruled that federal protection of the abortion right exists in the early stages of pregnancy, but not afterward. Abortion opponents, including some state governments, reject those decisions and seek Roe’s reversal, ending all federal protection.

Unable until now to reverse Roe, some states, like Mississippi in the current case, keep trying to narrow the effect of the court’s rulings by lowering the number of protected weeks and the number of abortion clinics.

Drawing abortion into the center of partisan politics began decades ago. In 1969, President Richard Nixon launched the idea of a “great silent majority.” Ever since, the Republican Party has worked to activate that majority by encouraging and exploiting divisive social issues.

Those are wedge issues. The Republicans expect to be repaid for backing dedicated advocates by gaining their votes. Their single-issue support gives the GOP a blank check for unrelated policies. For example, if you vote for the GOP because of its stand on abortion, you give it a free hand on the environment.

After the 1973 Roe decision, opposition to abortion became a leading wedge issue for the GOP.

Now the court’s choice is whether to keep Roe, even with more limits, or declare that its previous decision was a mistake. If the court retains Roe in any form, abortion opponents will campaign hard for candidates who will back more supportive appointments to the court and more restrictive legislation. The GOP can continue to exploit the issue.

If the court overturns Roe, some believe the result will be a divided country with some states protecting abortions while others outlaw it. The GOP would relieve some pressure, and an uneasy accommodation would occur. That’s an illusion.

Anti-abortion advocates will shift their attention to the states, mostly Democratic, that protect the right. These states will come under heavy pressure, and the GOP could seek to increase its active support there. In short the conflict would continue, supporting a GOP effort to gain control of state governments.

Is this a court, or just a legislative body?

Either way, the Supreme Court’s ivory tower image may be tarnished. Its decision would add to its being seen more as a political and legislative government agency than a judicial body. Under continual pressure, it arrived at this position by allowing its previous decisions to be questioned.

It could try to retain respect if it chose to keep a modified Roe on the grounds it was adhering to binding precedent. U.S. Sen. Susan Collins said during the nomination process that Justice Brett Kavanaugh told her he regarded the case as “settled law,” gaining her support by implying that he would defer to it as a court precedent.

Yet as Justice Brandeis long ago wrote in a case on precedents themselves, they are often reversed. Now Kavanaugh may be ready to overturn Roe. Either he knowingly offered Collins a hollow assurance or she mistakenly gave “settled law” more weight than it deserved.

The court has been intentionally loaded with GOP appointees whose coolness to Roe is obvious. That strategy is nothing new. Stacking the court for partisan purposes goes back to John Adams, the second president. His Federalist appointees dominated the court long after his party died.

Chief Justice John Roberts seems to be trying to reduce the political effect of a court decision. He has suggested shortening the protected period but keeping Roe. He would accept the 15-week protected period in the Mississippi law, which would become the new base for all states. Few abortions take place later than that.

The nature of a good compromise is that both sides end up equally unhappy. Roberts’ approach could qualify as a compromise, but it would not likely be the last word.

The decision, which will come in an election year, may be an historic turning point. While the issue is abortion, the partisan struggle for political control and respect for the Supreme Court are also fundamental concerns.

Beyond arguing the merits of the abortion case, the debate should highlight the broader political strategy linked with it. Voters should better understand the full implications of what is at stake.

 

Gordon L. Weil

Gordon L. Weil

Gordon L. Weil has been active in politics, journalism, publishing and energy consulting. A graduate of Bowdoin College, he has a master’s degree from the College of Europe (Belgium), and a Ph.D. from Columbia. He is an Army veteran. He was a top aide to U.S. Sen. George McGovern during his run for president. In Maine, he served as Commissioner of Business Regulation, Director of the Office of Energy Resources and the state’s first Public Advocate. He was a Harpswell selectman. He led the negotiations that created the unified New England power grid and chaired the national organization of state energy agencies. He reported for the Washington Post, Newsweek, London’s Financial Times, the Wall Street Journal and WNET (New York). His weekly commentary has appeared in Maine newspapers since 2008. He has written or edited 16 books or collections ranging from the biography of Sears, Roebuck to the three-volume U.S. Supreme Court original jurisdiction decisions. His company, sold in 2005, was the largest publisher of state government regulatory codes.


RECENT ARTICLES