In March, I wrote of my hope that the Supreme Court would let stand the lower court decision nullifying Mississippi’s ban on abortions after 15 weeks of pregnancy. The court had been in the midst of an unusually protracted deliberation which gave me cause to think they wouldn’t consider the case. That hope was dashed last week. The Supreme Court took the case and declared its intention to resolve the question “whether all pre-viability prohibitions on elective abortions are unconstitutional,” even though that hasn’t been a serious legal question for the last 48 years.
Supporters of reproductive freedom shouldn’t assume the case, Dobbs v. Jackson Women’s Health Organization, is lost. Four Supreme Court justices are required to accept a case, not five. And whether five votes are in hand is an open question. For example, the recent profile of Brett Kavanaugh by The Atlantic’s McKay Coppins characterized his record to date as “disinclined toward culture war,” yet his vote may be needed to fire a nuclear missile at Roe v. Wade.
But one can reasonably conclude that the four most likely anti-Roe justices—Sam Alito, Amy Coney Barrett, Neil Gorsuch and Clarence Thomas—wouldn’t have taken this step without some degree of confidence they could get to at least five. Perhaps Roberts agreed to take the case as well in order to get out in front of the parade. And if they can get to five, the consequences would be severe.
An America without an intact Roe (and its companion ruling in Planned Parenthood v. Casey) would be painfully divided between states with reproductive freedom and states without. A 21st-century “underground railroad” would likely materialize, ferrying women and girls across state lines to abortion clinics in the free states, and smuggling abortion pills across state lines to the not-free states. But such efforts, which would carry the risk of legal repercussions and vigilante violence, would not reach everyone who wants an abortion. Women and girls who could get abortions in the free states would have a better chance of avoiding poverty than those in the not-free states. Those pregnant with medical complications would be more likely to survive in the free states, and more likely to die in the not-free states.
Pro-choice Democrats should be scared. But anti-abortion Republicans should be, too.
As The New York Times’ Linda Greenhouse noted, for several years, Republican state legislatures “have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect[.]” These “politicians have not paid a price,” but warned Greenhouse, “[n]ow perhaps they will.”
Republicans should heed that warning, for it’s not just deep red, heavily evangelical states that will outlaw most abortions, but purple states that have been trending blue, possibly awakening a sleeping pro-choice giant.
Several states have abortion bans which have been rendered inoperative but, depending on what happens with Dobbs at the end of the Supreme Court’s next term in the summer of 2022, could soon be put into effect. “If Roe were overturned, abortion would be likely to quickly become illegal in 22 states,” according to a New York Times analysis. Most of these states are reliably Republican at the federal level, and have fully Republican-controlled state governments. But not all.
Arizona and Georgia have Republican-controlled state governments, but have recently shifted Democratic in presidential and Senate contests. Kentucky, Michigan, North Carolina, and Louisiana have Republican-controlled state legislatures but Democratic governors; Michigan has generally voted Democratic in presidential races (with the notable exception of 2016) and North Carolina’s federal races have been closely contested. Also, Texas is a fully red state, but one with the biggest population gain (a net of 4 million), and where Democrats have been rapidly gaining ground. Over the last three presidential elections, the Republican margin of victory in Texas has declined from 15.8 percent to 9 percent to 5.6 percent.
So how would an anti-Roe/Casey ruling impact these states?
Kentucky and Louisiana are socially conservative states, and Louisiana’s Democrat governor John Bel Edwards is strongly against abortion, so probably not much political impact there.
Michigan is a light blue, pro-choice state. In 2019, when the state legislature was debating a ban on the dilation and evacuation abortion procedure, a poll found 58 percent of state voters opposed the bill, and only 31 percent supported it. If Michigan’s pre-Roe law gets resurrected, the state’s pro-choice majority will surely fight back vehemently, putting anti-abortion state legislators at risk.
But the bigger threat to Republicans nationally in a post-Roe America is the reaction in the Sun Belt states.
Earlier this month, CNN’s Ron Brownstein took a close look at the changing Sun Belt. He found that “Whites without college degrees have declined as a share of the electorate since 2004 in every major swing state,” but more so in the Sun Belt states, which are experiencing robust population growth. Biden’s breakthrough Arizona and Georgia wins were helped by “a growing minority population coupled with enough improvement among college-educated White voters to overcome big GOP margins among Whites without college degrees.”
These demographic shifts can be found in other key Sun Belt states where Biden fell short, namely North Carolina and Texas. FiveThirtyEight’s Elena Mejía and Geoffrey Skelley tracked where Biden made inroads, “In Texas, for instance, Biden became the first Democratic presidential candidate to carry Tarrant County (Fort Worth) since 1964, and in North Carolina, he improved on Clinton’s margins in the two most populous counties in the state, Mecklenburg (Charlotte) and Wake (Raleigh). He even carried some suburban and exurban counties that Trump won in 2016, such as Williamson County outside of Austin, Texas, and New Hanover County, North Carolina (Wilmington).”
How rapidly are some of these states changing? The data analysts at Catalist determined that a whopping 36 percent of Arizona voters in 2020 did not vote in the state in 2016. In Texas, that figure is 34 percent and in Georgia, 32 percent.
To take away existing abortion rights in these Sun Belt states could turbocharge the leftward shift, because those with college diplomas are more pro-choice than those without. A Pew Research Center poll from April found that 68 percent of college graduates believe abortion should be legal in most or all cases, versus 50 percent of non-graduates. And a Gallup poll from last May found that 62 percent of college graduates self-identify as “pro-choice,” versus 41 percent of non-graduates. (In the Pew poll, 67 percent of Blacks and 68 percent Asians supported legal abortion, while support among Hispanics was a relatively softer but still healthy majority of 58 percent.)
In recent years, abortion has animated the Right more than the Left. A 2020 Public Religion Research Institute poll, which explored issue positions and priorities of different racial and religious groups, determined that white evangelical Protestants were the only subgroup with a majority (63 percent) considering abortion to be a “critical” issue, and they were the group with the lowest share (22 percent) believing abortion should be legal.
But if the Supreme Court overturns or guts Roe and Casey, priorities will change radically. Little in politics is more motivating than a governmental body taking from you something that you already had. And the right to decide whether or when one becomes a parent is a decision that determines the path of one’s entire life. Abortion rights will not be stripped without a fight.
The likelihood of Sun Belt backlash makes Texas Gov. Greg Abbott’s recent signature of a “fetal heartbeat” bill politically perplexing. Texas joined several other red states in passing such legislation, which defines “fetal heartbeat” as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac,” and says the gestational sac “is typically visible by ultrasound after the fourth week of pregnancy.” (The Associated Press notes that, “at the point where advanced technology can detect that first flutter, as early as six weeks, the embryo isn’t yet a fetus and it doesn’t have a heart,” raising the question whether “fetal heartbeat” is an appropriate term.)
A Supreme Court opinion upholding Mississippi’s 15-week ban wouldn’t necessarily validate the new Texas law, which effectively imposes a ban at around six weeks—a threshold so early that many women don’t know they’re pregnant. But it likely would raise the possibility that the Texas law and others like it would eventually survive legal challenges. Once the Supreme Court starts taking a meat axe to Roe, no one can know when it will stop. The uncertainty and anxiety would roil politics in Texas, the state with the most population growth over the past decade. If Republicans want to prevent Texas from turning blue, they are doing it wrong.
“Maybe they’d give it back to the states,” Donald Trump said after nominating Barrett to the Supreme Court. Such talk from conservatives has two purposes. One is to argue that the Supreme Court shouldn’t have inserted itself in the abortion debate in the first place and provoked a culture war—years ago, Barrett suggested the Court had instigated “Roerage”—so undoing Roe would help calm the political waters. The second is to mitigate political blowback. The unspoken subtext is: hey Blue staters, you can still get your abortions, what do you care if Red staters can’t?
These views ignore the brutal culture war that the Court could unleash in the purple states. And even red states have blue metro areas with influential businesses who care about their national reputations; boycotts of New Orleans, Charleston, and Cleveland could upend politics in their Republican states.
Greenhouse rightly warns that even if Republicans pay a political price for gutting Roe, “women themselves will pay a heavy price as this new reality sorts itself out.” Such suffering warrants no cheer or complacency. But anti-abortion Republicans who think they are on the verge of winning the abortion war should also be terrified at the battles yet to come.