What does it take to raise the blood pressure of an entire country? Just three letters: Roe.
Thanks to Texas, those three letters are back in the headlines. The state’s new abortion law goes to greater lengths than perhaps any other state legislation to protect the lives of the unborn. Everyone agrees that the Texas law will be challenged in federal court. Ultimately, the Supreme Court will determine if the federal constitutional right to an abortion conjured by Roe v. Wade is still the law of the land, or whether Roe should be changed for one or more reasons. Predictably, voices on the right have praised the move of the Texas government, while the left has reacted with outrage.
Yet even pro-life pundits may be missing the real story. Yes, allowing states to adopt more pro-life laws would save babies. But it might just save America too.
Of course, it’s hard to imagine anything involving abortion uniting America. Just look at the left’s distortions and deceit about the Supreme Court’s recent—and very limited—ruling that, until someone actually tries to enforce the law, lower courts can’t stop Texas’s ban on abortions after a heartbeat is detected.
But even as the way has been cleared for the Texas pro-life law to take effect, the Supreme Court is set to hear an even bigger case in the coming term, Dobbs v. Jackson Women’s Health Organization. In that case, the Court cannot avoid the question about the constitutional validity of Roe.
Ironically, as even progressives like Ruth Bader Ginsburg have hinted, it took a view of the U.S. Constitution as a “living document” to establish the right to kill a living human being before birth.
Now, thanks to President Trump’s appointment of three originalist judges in a single term, there is the real possibility that the Supreme Court will revisit Roe or modify the legal standard which currently prohibits any “undue burdens” on a person’s right to an abortion.
For example, the Court might conclude that a 15-week abortion ban—like Mississippi’s ban in Dobbs—is not an undue burden because it gives enough time for a woman to discover she is pregnant and make a decision.
But this more incremental approach misses what might be the primary benefit of the Supreme Court going all the way and declaring that Roe was wrongly decided.
The hard truth is that such a step would not actually save all—or even most—lives lost to abortions.
Of course, every life counts. But some have credibly estimated that the number of legal abortions would only decline by about 14 percent in a post-Roe world.
Put simply, it would not outlaw abortion. It would return the decision to states. All in all, what states would do with that freedom doesn’t exactly look like a pro-life utopia.
Smaller red states, from South Carolina to Utah, would probably enact strong pro-life laws outlawing most abortions. But those states already have fairly low abortion rates.
In the meantime, heavily-populated blue states like New York and California with high abortion rates today would continue to permit abortions on demand, and might even make their abortion laws more permissive than allowed under current federal law.
And big but more purple states like Florida, Pennsylvania, and Wisconsin would likely take a moderate approach. For example, they might prohibit abortions but with some combination of only a prohibition on abortions in later stages of pregnancy and exceptions like rape, incest, risk to the mother’s life, birth defects, or even when the mother is a minor.
But, unlike its practical implications, moving beyond Roe would be a colossal turning point in our culture and politics. And that’s the opportunity missing from the current debate.
For one thing, it would restore the Supreme Court to its rightful place in the Constitutional order—from a super-legislature to a court entrusted to enforce the Constitution.
It would also move Supreme Court nominations away from the knock-down-drag-out wars they’ve become, as exemplified by the circus around Brett Kavanaugh’s nomination.
Returning control to states and localities would revitalize federalism and state power when we need it most as an ascendant left-wing movement gains more and more power in Washington. It would also enable state legislatures to limit the destructive and centralizing power of the progressive “squad”.
After decades of left-wing efforts to the contrary, a majority of Americans still do not agree with Roe’s extremism. Changing Roe would restore the general public’s sense that elites and elite institutions are capable of listening to them.
Less important from the standpoint of protecting life, but no less satisfying from a political standpoint, decentralizing the fight also might—might—bring the most rabid, clickbait-obsessed internet trolls and celebrities on the left back to reality as they realize that the absence of Roe doesn’t lead to “cultism, fascism, terrorism”, nor does it mean that “democracy will wither & die [&] dictators will thrive,” as many have suggested.
A stronger constitutional order. A less toxic political debate. And a left that learns the world doesn’t end when they don’t get to rewrite the Constitution as they see fit. Those are the most likely outcomes if the Supreme Court revisits and ultimately reverses its 1973 decision to “create” a constitutional right to abortion.
The question isn’t whether America can survive if Roe is revisited. It’s how we survived this long without doing so.