Ross Douthat: The end of Roe is just the beginning

Anti-abortion movement has yet to prove it can win ongoing popular support.

(Mark Peterson | The New York Times) Anti-abortion demonstrators outside the U.S. Supreme Court on the day it overturned its Roe vs. Wade ruling that protected abortion rights, in Washington, June 24, 2022. “While the pro-life movement has won the right to legislate against abortion,” writes The New York Times columnist Ross Douthat, “it has not yet proven that it can do so in a way that can command durable majority support. Its weaknesses will not disappear in victory.”

By any reasonable political science theory, any normal supposition about how power works in our republic, this day should not have come.

The anti-abortion movement has spent half a century trying to overturn a Supreme Court ruling that was presumed to reflect the enlightened consensus of the modern age. It has worked against the public’s status quo bias, which made Roe v. Wade itself popular, even if the country remained conflicted about the underlying issue. Against the near-universal consensus of the media, academic and expert class. Against the desires of politicians who were nominally supportive of its cause, the preferences of substantial portions of American conservatism’s donor class.

Across all those years the anti-abortion cause also swam against the sociological and religious currents of American life, which have favored social liberalism and secularization. It found little vocal support among Hollywood’s culture-shapers and crusaders for social justice, or the corporate entities that have lately embraced so many progressive causes. It was hampered by the hiddenness of the injustice it opposed, the voicelessness of the constituency on whose behalf it tried to speak.

And it worked against the weight of the American class hierarchy, since anti-abortion sentiment is stronger among less-educated and lower-income Americans — exactly the wrong constituency to start with, according to cynics and realists alike, if you want to pressure the elite or change the world.

More, the anti-abortion movement has had to succeed twice. It’s entirely true that the Supreme Court decision overturning Roe v. Wade is the work of a somewhat accidental supermajority, created by the haphazard interaction between judicial mortality and Donald Trump’s unlikely victory.

But it’s also true that the anti-abortion side already built an apparent high court majority the standard way, in the Reagan era, by supporting Republican presidents who won big, popular majorities and appointed a raft of justices whose philosophy was supposedly opposed to the liberal policymaking of the Warren court.

When three of those justices, Anthony Kennedy, David Souter and Sandra Day O’Connor, voted to effectively uphold Roe in 1992′s Planned Parenthood v. Casey, their decision clearly aspired to be a permanent settlement, a call to end “a national controversy” with “a common mandate rooted in the Constitution.” The anti-abortion movement was an always-marginal and embattled cause, and in that moment it did seem defeated.

Yet 30 years later, here we are. And for all the contingency involved, future scholars of mass movements will find in the anti-abortion cause a remarkable example of sustained activism against substantial odds, of grassroots mobilization in defiance of elite consensus — of “democratic virtues,” to borrow from political scientist Jon Shields, that would be much more widely recognized and studied if they had not been exercised in a cause opposed by progressives and the left.

But the story doesn’t end here. While the anti-abortion movement has won the right to legislate against abortion, it has not yet proven that it can do so in a way that can command durable majority support. Its weaknesses will not disappear in victory. Its foes and critics have been radicalized by its judicial success. And the vicissitudes of politics and its own compromises have linked the anti-abortion cause to various toxic forces on the right — some libertine and hyperindividualist, others simply hostile to synthesis, conciliation and majoritarian politics.

The anti-abortion movement is inevitably bound to some kind of conservatism, insofar as an anti-abortion ethic is hard to separate from a conservative ethic around sex, monogamy and marriage. But among its own writers and activists, the movement has understood itself to also be carrying on the best of America’s tradition of social reform, including causes associated with liberalism and progressivism.

The late Richard John Neuhaus, the most eloquent anti-abortion intellectual of my youth, was once a left-wing pastor who marched with Martin Luther King Jr., and he saw the fight against abortion as proceeding from the same universalist premises as the civil rights movement. Contemporary advocates of anti-abortion feminism like Erika Bachiochi have linked their critique of abortion to the views of 19th-century feminists and suffragists, portraying an abortion rights politics as a fundamental evasion of society’s true responsibility to women.

At the same time the anti-abortion movement’s many critics regard it as not merely conservative but as an embodiment of reaction at its worst — punitive and cruel and patriarchal, piling burdens on poor women and doing nothing to relieve them, putting unborn life ahead of the lives and health of women while pretending to hold them equal.

To win the long-term battle, to persuade the country’s vast disquieted middle, opponents of abortion need models that prove this critique wrong. They need to show how abortion restrictions are compatible with the goods that abortion advocates accuse them of compromising — the health of the poorest women, the flourishing of their children, the dignity of motherhood even when it comes unexpectedly or amid great difficulty.

These issues may be secondary compared with the life-or-death question of abortion itself, but they are essential to the holistic aspects of political and ideological debate. In any great controversy, people are swayed to one side or another not just by the rightness of a particular position, but by whether that position is embedded in a social vision that seems generally attractive, desirable, worth siding with and fighting for.

Here some of the pathologies of right-wing governance could pave a path to failure for the anti-abortion movement. You can imagine a future in which anti-abortion laws are permanently linked to a punitive and stingy politics, in which women in difficulties can face police scrutiny for a suspicious miscarriage but receive little in the way of prenatal guidance or postnatal support. In that world, serious abortion restrictions would be sustainable in the most conservative parts of the country, but probably nowhere else, and the long-term prospects for national abortion rights legislation would be bright.

But there are other possible futures. The anti-abortion impulse could control and improve conservative governance rather than being undermined by it, making the GOP more serious about family policy and public health. Well-governed conservative states like Utah could model new approaches to family policy; states in the Deep South could be prodded into more generous policy by anti-abortion activists; big red states like Texas could remain magnets for internal migration even with restrictive abortion laws.

And it is not only the anti-abortion movement that could alienate the conflicted middle in the post-Roe world. The pro-abortion rights side is presently in danger of jettisoning its time-tested rhetorical moves in the name of progressive political correctness and refusing to compromise its maximalist policy demands.

Moreover, certain redoubts of contemporary progressivism have a grimmer spirit — unhappy, sterile, future-fearing — than the youthful atmosphere of 1960s liberalism in which the abortion rights movement won so many victories. If Alabama and Mississippi aren’t the best advertisements for the anti-abortion vision, neither are Seattle and San Francisco necessarily brilliant advertisements for where uncut social liberalism ends up.

All of which is to say that any confident prediction about this ruling’s consequences is probably a foolish one. There can be no certainty about the future of abortion politics because for almost 50 years all policy debates have been overshadowed by judicial controversy, and only now are we about to find out what the contest really looks like. It’s merely the end of the beginning; the true end, in whatever settlement or victory, lies ahead.

Ross Douthat | The New York Times (CREDIT: Josh Haner/The New York Times)

Ross Douthat is a columnist for The New York Times.