Why the Right Needs Roe

The fury Hillary Clinton provokes among her enemies over abortion reveals the fraudulence the Conservative Republican position on Roe v. Wade.

Abortion is a strategic prize in the culture war like a Vicksburg or an Atlanta was in the Civil War, a practical multi-propose asset and a symbol of power. The Trump ticket is promising to overturn Roe if they win. The GOP has declined to do its traditional duty to help fill the current vacancy in the Supreme Court because they anticipate that any justice Clinton appoints will keep abortion as it is now, or else help it become even safer and more available nationwide. Many states that presently vote Republican already have laws in place that would make abortion illegal within weeks after Roe is overturned. Conservative voters hang on that edge waiting for the moment to strike. They want Hillary Clinton’s defeat to give that moment to them at last.

The rank-and-file faithful are being strongly encouraged, not to say manipulated, to make an all-or-nothing stand on Roe, and on that issue to stake their self-esteem and their faith in the nation. It’s a cruel calculation on the part of Republican leaders because this issue has reached irreversibility. The leaders must know this. They’re being dishonest with Republican voters, for these reasons.

1. Stare decisis: the Court has to be loath to reverse a long-standing ruling, and for the Court even to put it on the docket would be risky. The judges all have their respective stances on this, but they cannot permit themselves to be seen as mere partisans.

2. Roe isn’t a Constitutional amendment, so repealing it doesn’t end abortion in the United States (and many Republican voters might not understand this). The question would move to state legislatures. In many Red states, for the moment at least, Republican power is strong enough to drive bans on abortion into state constitutions. Red-red states would ban it immediately. Partial-red states would contend furiously. Blue states would keep it legal. The map of the United States showing these divides would effectively be a map of irreconcilable cultures, economies, and even historical eras sharing the same place and the same time — quintessentially a House Divided like that of America in the mid 19th century.

3. If the power interests in a Red state were to ban all abortion within their state borders, they’d be precipitously raising several related questions and probably shifting their state towards the political middle instead of away from it. Companies in those states would face immediate crises over practical HR policies on recruiting, hiring, parental leave, maternity leave, birth benefits, gender equality, promotions, etc. The legislatures would have to question the legality of people crossing state lines to seek abortion elsewhere, of transporting a pregnant woman across state lines for the purpose; of permitting the use, sales, and transport of so-called abortifascent pharmaceuticals; etc. In effect those states banning abortion would have to criminalize the whole idea in every practical manifestation, which is to say that if a state outlawed it, they’d create a legal marketplace for abortion in close proximity over any border including Indian reservations and neighboring states; and inevitably, a lucrative black market inside their own borders for any drugs or tests related to pregnancy. They’d also be practically inviting companies to leave for alternatives whose laws are less restrictive. Plenty of states that would make that easy.

4. The technology permitting a woman’s private competent, safe control over her reproduction has improved and will keep improving in the free market. Conservatives can’t reverse progress. If a woman can’t have an abortion in some states, the market for these technologies in those states will explode, requiring states that, for example, ban abortifacients, to either police or tolerate the underground market. Most by default would do the latter. Americans inside and outside those anti-abortion states would set up delivery systems instantly to deliver those drugs and technologies. Inevitably the intentions of the bans would be nullified by their ineffectuality, begging the question of what this really is about: not safety, not morals even but the rights of men to subjugate women. That’s a test the anti-abortion advocates can’t afford.

5. The central legal rationale for reversing Roe would be that the rights of potential citizens supersede the rights of the real ones. Fighting abortion with personhood citizenship, and thereby granting equal protection for the citizen starting at conception, would require the states to force women to report on their sexual activity. The only way to guarantee the right of protection to a person whose life starts in private is to insist that said person’s life doesn’t start in secret: citizenship and its protections starting at that moment require the protective powers to know that said person exists, so the law will require the woman, and possibly the man, to report its existence. No authority could allow a citizen to be denied protection because of false reporting, i.e., saying that the person never existed during the hours from its conception to its demise when that person did in fact have rights; so the states have to require women to report all sexual activity and its outcomes, positive and negative, and to assume that if a woman does have sex, then a person might have been conceived. If a person might have existed, then a report on the negative has to be verifiable, and every woman of age has to prove the negative to prove that she is not complicit in making a citizen disappear. That’s the danger of the anti-Clinton voters insisting that abortion is murder: murder demands a criminal investigation, and that means a taxpayer-financed, certified, professional investigative infrastructure of the kind that investigates criminal cases in every community in America. It makes every woman who is of age to engage in sexual activity in effect a person of interest in the possible killing of a personhood citizen.

6. The foundation of Roe is the right to privacy. If these other steps are taken in defense of the personhood citizenship, dismissing that right cavalierly by abortion opponents on behalf of this cause might cost them in other areas where privacy is in their interest. Reversing Roe and enforcing abortion bans to any degree of effectiveness would be so invasive as to test every Article in the Constitution and every Amendment in the Bill of Rights from the separation of powers to every application of the Commerce Clause to the Second Amendment.

The obvious makes itself clear here. The Republican Party’s commitment to reversing Roe isn’t about Roe at all. It’s about cultivating and managing voters who vote passionately instead of deliberately. In 2016 the Republicans are in the end stages of a long Jenga game, with their tower of issues teetering. They’ve seen the sticks for civil rights, feminism, civil rights, and gay marriage pulled away from their stack; they’re unstable on every question of science, smoking, vaccines, or climate change. The fundamental freedom that the Right stands for today is threatened: the right to nullify facts selectively, the right to reach any conclusion by any irrational means. They need that. They need to preserve the credibility of irrational arguments everywhere in order to use irrational arguments where they need them, in irrational tax policy, for example, or in irrational cuts in education spending, or in irrational legislation against environmental regulation, or in fighting the rational press. That fury gives frightened Conservative voters a feeling of strength at a moment in history when their world is threatened. The abortion issue combines their faith and their politics to deliver a sense of certain moral superiority in a moment when so many of them feel marginalized and insulted by the world around them. Irrationality feeds the fury.That rage can be used by GOP leaders like carpet bombing. The known targets are invulnerable: Planned Parenthood, feminism, gender equality, climate science, Creationism, women in the workplace, religion in politics, modernity itself, etc.; but the general thinking is what counts, because that gut-level irrationality can be aimed to bomb subtler targets. Voters who can be induced to detest reason, deliberation, and people who challenge their presuppositions are the ones who can be induced to vote against their own interests in tax policy, education, environmental policy, etc. Republicans need those voters, so they need an intractable, insoluble, infuriating issue — permanent siege that delivers useful rage. They need Roe v Wade right where it is.