Why Conservatives Should Beware a Roe v. Wade Repeal
With all eyes on Supreme Court nominee Brett Kavanaugh’s confirmation hearings, expected to begin on Sept. 4, Americans—depending on one’s personal feelings about the matter—are either anticipating or steeling themselves for a massive rollback of women’s reproductive rights. Kavanaugh appeared to win over Susan Collins, one of the Senate’s presumptive swing votes, in assuring her during a private meeting that he considers Roe v. Wade “settled law.” Others aren’t so easily convinced, noting that all law is settled until the Supreme Court overturns it. Indeed Kavanaugh, who will undoubtedly sidestep any discussion of Roe v. Wade during his confirmation hearing, offers the anti-abortion movement its first credible opportunity to reverse Roe and thereby empower, and perhaps even compel, states to criminalize abortion.
But conservatives might pause before they pop champagne corks. In the same way that Roe v. Wade produced a massive political backlash that empowered the anti-abortion movement and realigned electoral politics in the decades that followed, a judicial fiat that flies in the face of public opinion might do the opposite, generating a resurgence of political activity in favor of abortion rights.
To understand what’s potentially at stake, one need turn only to Justice Ruth Bader Ginsburg, an abortion-rights supporter who led the ACLU’s Women’s Rights Project in the early 1970s. Ginsburg has long argued that Justice Harry Blackmun’s polarizing 1973 Roe v. Wade decision—on the surface an abortion rights victory—was actually a poison pill for the movement. By predicating abortion rights on an expansive but implied right to personal privacy, Ginsburg observed years after the fact, “the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” What’s more, the decision “stopped the momentum on the side of change.” It provided little impetus for advocates of reproductive rights to win hearts and minds, one legislative or ballot initiative at a time, and instead inspired opponents of reproductive freedom to do just that.
On the eve of their potential victory, how far will anti-abortion opponents go in dismantling not just the right to terminate a pregnancy, but the very right to privacy? And in so doing, will they inadvertently step into the same political trap that led abortion rights activists to this precarious moment?