After the media coverage of the Supreme Court’s oral arguments in Dobbs v. Jackson Women’s Health Organization, the case addressing the constitutionality of Mississippi’s highly restrictive anti-abortion law, you’d be forgiven for presuming the court was ready to settle the abortion debate once and for all.
That’s an understandable reaction, but it’s premature at this point. First and foremost, it’s not always easy to guess the outcome based on oral arguments – the court surprises even knowledgeable attorneys at times. So, even if it seems as if things went poorly during oral arguments for abortion rights supporters, it’s not necessarily a given that the final decision will go against them, or that it will end up being the seminal moment in American politics that everyone presumes.
The Supreme Court could find a way to uphold the new Mississippi law without completely overturning Roe v. Wade, the 1973 decision that recognized a constitutional right to abortion and struck down state bans. Even if the court did decide to overturn Roe, it seems unlikely that even its conservative majority is ready to decide that there is, indeed, a constitutional “right to life” and effectively outlaw abortion nationwide.
Although that’s certainly the ultimate goal of the most diehard abortion opponents (the term wasn’t just invented as a political turn of phrase), it’s not one that they’re going to probably see the Supreme Court do for them. Thus, the only way to outlaw abortion would be through a federal constitutional amendment, and the likelihood of such an amendment being passed in today’s polarized atmosphere seems even less likely than the court’s ruling it into existence. Conversely, abortion-rights supporters would seem to be equally unlikely to be able to pass their own constitutional amendment ensuring the right to choose nationally any time soon.
Either pro-choicers or pro-lifers could have passed this constitutional amendment at any time after Roe was decided. Neither side ever really made any serious attempt to do so. Instead, each has pinned its hopes on the federal courts taking its side.
So, if the Supreme Court finds a way to uphold the Mississippi law without establishing a constitutional right to life, what happens next?
Well, that ruling wouldn’t end the battle over abortion, it would merely shift the location of the battlefield. Rather than being largely a federal issue, abortion would suddenly become a state issue. If the Mississippi law is upheld, conservatives in state legislatures all over the country would suddenly have the same ability to restrict abortion rights that liberal state legislators have had to expand them for decades now. There would be a rush of new proposals all over the country to restrict abortion rights, and conservative states would continue to push the boundaries of whatever new standard the Supreme Court sets in Dobbs. Instead of being able to duck the question by saying it was a federal issue, state legislative candidates all over the country would have to take positions on specific legislative proposals regarding abortion rights. Similarly, in Democratic states there would be a flood of bills to protect the right to choose.
The real question is what happens in states, like Maine, that swing between both parties. It’s easy to presume that, if Roe is overturned or weakened, abortion would suddenly become the foremost issue in most voters’ minds and that every state legislative race would revolve around that issue alone. The truth is a little more complicated. While many voters may identify themselves as either pro-choice or pro-life, most of them probably aren’t as solidly entrenched in their positions as one might think. Voters who consider themselves pro-choice might be willing to accept some restrictions under certain circumstances, while many pro-life voters don’t really want to enact a total abortion ban.
While the Supreme Court’s forthcoming ruling in Dobbs will undoubtedly be of great political import, it might not be as immediately earth-shattering as activists on either side hope. Instead, the political and policy impact of the decision may well take decades to be felt. In the interim, every voter and many candidates all over the country will still have to decide for themselves just how important abortion is to them as an issue, just as they always have.
No matter what the Supreme Court decides, that won’t be the final verdict on the issue – because in a democracy, that process is much more long, drawn-out and messy.
Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins. He can be contacted at:
jwfossel@gmail.com
Twitter: @jimfossel
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