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. Wadedecision—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.
As they stand poised to overturn Roe v. Wade, political conservatives may be in danger of extreme overreach. Indeed, they may fall into the same trap that befell abortion rights activists in the 1970s. In the mid-1970s, most Americans—54 percent—told Gallup that abortion should be legal in some but not all cases; far fewer Americans responded that abortion should never (21 percent) or always (22 percent) be legal. In effect, there was a broad political center, and in the wake of the court’s decision, the abortion rights movement no longer faced as much urgency in persuading abortion-rights moderates.
But in the years since, although abortion opponents have animated their base in ways that fundamentally shifted the political landscape, they haven’t succeeded in moving public opinion their way. Today, Gallup finds that only 18 percent of respondents believe that abortion should always be illegal. Fifty percent believe that abortion should be legal in some circumstances, and 29 percent support abortion rights without condition. In other words, the center has contracted, hard-line opposition has dropped, and supporters of reproductive rights have increased their share of the Gallup sample.
If Roe v. Wade sparked a political revolution in an era when hard-line opposition to abortion was soft, one can only imagine the strength of the counter-reaction should a conservative court all but criminalize a right that currently enjoys the qualified support of 79 percent of the American population.
Will overturning Roe v. Wade mobilize the pro-choice movement like never before? Perhaps. But I think most social conservatives are willing to take that chance. History cannot predict the future, but it is worth reflecting on whether overturning Roe will, in the very long run, lead to more abortions and not less.
Read Zeitz’s entire piece here.