Brett Kavanaugh, Donald Trump's pick to succeed retiring Justice Anthony Kennedy on the Supreme Court, will almost certainly be confirmed by the Senate in the coming weeks. And once he is installed, there is a significant chance that Roe v. Wade will be overturned within the next few years, fulfilling the fervent multi-decade-long wish of pro-life activists and leading members of the conservative movement to see the landmark decision gutted.
If you're convinced that abortion is the infliction of lethal violence against innocent human beings, then working and praying for the downfall of Roe not only makes sense — it may well be a moral imperative. But there's another, more pragmatic case for overturning Roe that's emanating from the center-right. For Megan McArdle of The Washington Post, abortion would be made "less contentious" by throwing the issue "back to the states so that people can argue about it." That, she believes, will "have a moderating effect on extreme positions." Ross Douthat of The New York Times, likewise, sees the "overturning [of] our inhumane abortion settlement" as something that just might help to "save our culture, if it's ever to be saved."
If only that were true.
Thoughtful conservatives are able to convince themselves of the plausibility of this cheery outcome because they've thoroughly internalized the religious right's narrative of Roe's pernicious effects on the nation's political culture. Having done that, they need only run the story backward to imagine a return to the comparatively placid status quo that prevailed on abortion before 1973. Take away the Constitution's supposed absolute right to abortion on demand, in other words, and the nation will reach a much less polarized settlement by arguing the matter out in the political branches of the 50 states.
The only problem is that history can't be run backwards, and today everything about our political lives is marked by intense polarization at almost every level. Even if Roe contributed in important respects to making it this way in the first place, by now the country's divisions exist quite apart from the ruling and will determine the way political actors and ordinary citizens respond to a reversal of the decision. The result would be an unprecedented provocation to much greater civic discord.
Ask an abortion opponent how we got here, and you're likely to hear something like the following story: Before Roe, states had very different ways of handling abortion, with many banning it outright and a few allowing it within certain limits. But then the Supreme Court stepped in, dubiously declaring abortion a constitutional right rooted in the right to privacy and overturning democratically enacted state laws across the country. With that one move, the modern religious right received its galvanizing issue, bringing Catholics together with conservative evangelical Protestants in an effort to defend the unborn. Liberals hoped the controversy would go away as the decision came to be considered settled law, but it hasn't. By blocking the democratic will of the American people, the Court created a pent-up demand for justice that has fueled the culture war ever since.
There's a lot of truth to this story. The constitutional arguments in favor of abortion rights in Roe are weak at best (as plenty of liberals have acknowledged). The fight for the rights of the unborn has fueled the culture war and the social conservative movement more than any other single issue. And the way the issue is handled by other democracies — especially those of Western Europe, where abortion is easily available almost everywhere through 10-12 weeks but sharply restricted after that point — is far more harmonious with public opinion than the extremes that mark each party's position on the issue in the United States.
None of that means overturning Roe would improve our uniquely American situation.
For one thing, the conciliatory European approach to the issue is impossible in the U.S., with its organized pro-life movement that would do everything in its power to get the procedure banned in as many states as possible. Even under Roe, with its supposedly absolute right to abortion on demand, well over a dozen states have enacted highly restrictive laws that aim to make it extremely difficult to find an abortion provider. With the constitutional right to abortion vacated, most of those states (perhaps as many as 20) would quickly move to shutter the few clinics that remain in operation. That would leave roughly half of the country with open abortion access and roughly half with next to none.
Despite what critics of Roe would have us believe, this would not be a triumph of democracy. Only 18 percent of the country wants to ban abortion outright. That number is undoubtedly higher in states with the most draconian restrictions on the procedure. But how much higher? As we see with distressing frequency in the Trump era, Republicans often advance policies in order to please the party's ideologically extreme and highly motivated activists regardless of whether those policies attract support among the unengaged and often ideologically muddled majority. On abortion, this (mostly silent) majority is uncomfortable with late-term abortions but wants to keep the procedure legal and easily available for women during the first trimester.
And that brings us to the likely feminist response to a reversal of Roe. Do conservatives really think that taking away a constitutional right that women have enjoyed for nearly half a century will lead pro-choice women to shrug and say, "Oh well, I guess we just need to get to work in lobbying state legislatures?" Hardly. They will be outraged — and justifiably so. How often in American history has the Supreme Court declared a constitutional right and then summarily reversed itself to erase that right? Such actions are exceedingly rare, and for very good reason, since they are an appalling affront to a very large group of citizens.
This is why even those who think Roe was badly decided have reason to leave it alone at this point, especially when the Court could just as easily act in a more limited way by clarifying which of the many restrictions passed in recent years at the state level can be construed as compatible with Roe and the abortion cases that followed it (especially Casey v. Planned Parenthood ). That is, conservatives could modestly restrict the right to an abortion while not overturning it entirely. That's by far the better course — and one that would land us in a position much closer to the morally muddled but politically salutary European settlement than the horribly polarizing prospect of reversing Roe altogether.
Calling for Roe to be overturned after 45 years isn't conservative at all. It's far closer to incitement.