Published June 25, 2022
What will the American legal and political landscape look like in 10 years, now that Roe v. Wade, Planned Parenthood v. Casey, and related precedents have been overturned and the issue of abortion has been returned to the democratic process? Likely Americans will be accustomed to governing themselves on this vexed matter through the deliberative work of the political branches as our friends and neighbors in nations around the world have always done, rather than by submission to the fiat of unelected judges. This will mostly take place at the state level, creating a patchwork approach to regulating abortion, with some states enacting strong restrictions and others adopting permissive regimes, or even promoting access to the procedure. This patchwork landscape will be complex but ultimately more democratic, easing polarization and bringing on more civic peace to U.S. politics.
People will realize that the post-Roe parade of horribles claimed by abortion rights advocates was never a serious threat. Women won’t be prosecuted for seeking an abortion (there is no evidence that, prior to Roe, in the rare instances of such prosecutions, any convictions survived review on appeal). Women will still be able to get treatment for ectopic pregnancies and miscarriages. In those states where abortion is prohibited, there will be exceptions for medical emergencies. In vitro fertilization will not be illegal. Neither will contraception, same-sex marriage, or interracial marriage, as some activists claim are next to be on the chopping block after abortion rights.
And contrary to the overheated claims of some, we will see that in a post-Roe world, women continue to rise in their quest for full and equal participation in the economic and social life of the nation — just as they have done in recent decades as abortion rates have simultaneously declined. Since 1990 as abortion rates have dropped precipitously, women’s participation in the workforce has, by contrast, dramatically increased, they have continued to increase their pay as a percentage of men’s income, and the percentage of businesses owned by women has soared (including among women of color). It will thus become clear that women don’t need abortion to flourish as equal participants in the economic and social life of the nation.
While it will be hard to govern ourselves on the question of abortion, given the strongly held views and conflict of great goods at stake (namely, reproductive freedom vs. the equal dignity of every human life), there will be more civic peace. The judicial confirmation process will no longer be a no-holds-barred proxy war over abortion. Personal harassment or even the assassination of justices will no longer tempt radical activists as a ready tool to work their will.
Unlike submission to raw judicial decree untethered to the text, history or tradition of the Constitution, self-governance involves a well-defined process of persuasion and compromise, where even the political losers feel heard, and are comforted that they can continue to make their case to the winners in the years to come. Both sides are forced to understand and respond to the arguments of their fellow citizens. The resulting laws of the states will more closely track the views of the people within their borders.
But best of all, without Roe and Casey, over the next 10 years, the American people will be forced to talk to one another, reason together and learn that their political opponents are not enemies, but people of good will who are trying to care rightly for those they love. And unlike under Roe and Casey, as the political process unfolds, we will at least have the chance to find common ground and come together to care for mothers, babies (born and unborn) and families in need.
Carter Snead, a Fellow at the Ethics and Public Policy Center, is an internationally recognized expert in the field of law and bioethics. His specific areas of expertise include stem-cell research, human cloning, assisted reproduction, neuroscience, abortion, end-of-life matters, and research involving human subject.