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Post-Roe America

Ramesh Ponnuru and Cass Sunstein have conducted an interesting colloquoy over at The New Republic site about the political implications of a hypothetical overturning of Roe v. Wade in the near future. National Review's Ponnuru took on the increasingly popular view that returning abortion policy to the legislative branches of the federal and state governments will be a boon to pro-choice progressives and a blow to the GOP. His main argument was that in a post-Roe world, pro-lifers may well be smart enough (and, if Roe is only partially overturned, may be forced) to focus on popular abortion restrictions rather than the kind of frontal assault on abortion rights that could produce a pro-choice backlash. Sunstein responded that losing Roe would give the pro-choice movement the kind of energy and determination that Roe itself has supplied for abortion opponents over the last thirty-three years.Both arguments have merit, but the debate itself makes an important point that should give pause to those progressives who sunnily forecast happy days in a post-Roe America: nobody knows exactly what would happen, but the one thing we do know is that a reversal of Roe would not create some sort of one-time national referendum on basic abortion rights. As Ponnuru suggests (and as I argued last fall in a public discussion with two leading pro-choice-but-anti-Roe experts, Stuart Taylor and Jeffrey Rosen), barring some highly unlikely preemptive action by Congress, the issue would play out in fifty state legislatures over an extended period of time, on a messy and complex landscape. Abortion would become a perennial, 24-7 issue in many states, dominating political discourse in ways that are easy to envision but hard to exactly predict. Perhaps elevating abortion policy to an overrriding national obsession will ultimately create the kind of decisive pro-choice consensus that Sunstein and others so confidently expect. But I wouldn't bet the farm (or, if I were a woman, my rights) on it, or look with equanimity at the very real possibility that a lame-duck Republican president will soon give the Supreme Court a fifth vote to overturn Roe.
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