After Roe

Even if Mr Trump gets his justice on board the Court, it is doubtful that the new rightist majority will literally overturn Roe v Wade. One reason for this is that Justice Roberts understands the history of the SCOTUS and knows that the Court cannot get too far ahead of the opinions of the population. This may be called the Dred Scott lesson. In ruling in 1857 that no Negro could be a United States citizen and that the federal government had no power to regulate slavery in the territories that might become new states, it outraged the majority of the American population, so much so that for two generations after the Civil War the Supreme Court was not of much account. Congress and the states took the reins and passed the Reconstruction amendments to the Constitution, essentially erasing the Scott decision. 

Plessey v Ferguson is the counter-example. In upholding de jure segregation of the races the Court was reflecting what most Americans believed, north and south. The North chose to segregate by custom and practice, but there was no essential disagreement about the status of African-Americans.  Sixty years after that, the majority of Americans thought that southern Jim Crow was a disgrace and made the Cold War more difficult. The Court responded with Brown. 

Right now, polls show that only 18 per cent of Americans want a complete ban on legal abortion, while near seventy per cent want at least some legal abortion. Justice Roberts would be stupid to allow a formal overturn of Roe, and he’s not, plus he has a genuine concern with the reputation of the court. Instead, the abortion right will be hollowed out, so that eventually, American women will retain the right to have an abortion, but will not in practice be able to obtain a legal one, at least not in many states. Of course, once Roe is thus gutted, a Republican Congress may pass a law making almost all abortions illegal nationwide.

Such a law will have approximately the same effect on the number of abortions performed on American women as the prohibition of alcohol had on the number of American drunks. It is almost an iron law of policy that when you move a much-desired activity from some form of social control (abortion clinics, saloons) to the illegal zone, the level of that activity increases rather than decreases. It will prove so with abortion too.

Let’s also note that abortion restrictions apply in practice exclusively to poor women. Any woman with the price of a plane ticket to Canada, Mexico, Europe or the islands need fear nothing from any anti-abortion law whatever. Were this not so, there would be no anti-abortion movement, because the anti-abortion Congressman’s daughter must have an out when knocked up by an unsuitable guy.  Why a large portion of America wants poor women to bear unwanted children is something of a mystery. Maybe they think that those snotty rich college girls screwing everyone will get their comeuppance. (They won’t.) Maybe it’s simple revenge: the liberals took away our Precious (the right to legally abuse black people) and so we’re gong to take away theirs. Maybe they cannot distinguish between an actual huggable cooing baby and a microscopic object, Or maybe there is a genuine religious horror, such that they believe they have the right to impose the religious belief that human life begins at conception upon people who do not believe it.  Whatever the reason, the hopes of those who believe that overturning Roe will reduce American abortions will be terribly disappointed.

Meanwhile, as the clinics shut down, a mass movement will develop to provide abortions to poor women, very like the Underground Railway that formed in reaction to the Fugitive Slave laws in the 1850s. Then as now, the conflict sprang from an irreconcilable difference in definitions. If blacks were mere property, then the slaveowner had every right to go into a free state and seize that piece of it. It was no different from reclaiming a horse or cow. But to many in the North, a human being could not be property, whatever the law said, and the slave-catcher was thus the worst villain. In our time, if you believe any zygote or fetus whatever has the same right to life as a human being, then the abortionist is the worst villain, and if you believe that the zygote or fetus is not a human until quite late in development then you will defend a woman’s right to decline carrying it.

There will be big money devoted to this cause. There will be a national number to call (1-800-BABYNOT) and there will be couriers and cars moving through the night, bringing drugs in and women out. There will be secret abortion sites in homes, and a corps of volunteers. When people are arrested, there will be nullifying juries. No better recruiting ground for the Democratic Party can be imagined than this mass volunteer organization.  Sixty-nine per cent of America is a lot of people and it is absurd to think they will stand for the imposition of a prohibition regime. 

That’s the nice part. The nasty part is that the guys who supply cocaine and heroin and meth will be happy to add another product to their line, and services too.  Everyone in town will know how to get pills, and the person to talk to if you’re too far gone for pills. There will be frank infanticides and dead women in motels. This too will effect the morale of many people who refer to themselves as pro-life.  It will be another American tragedy, like Prohibition and the drug war. Humans will be ground up and babies will not be saved. After a while, the whole thing will fade away, like the Temperance Party and the practice of jailing people for smoking pot or wearing a one-piece bathing suit. 

But the women won’t forget.