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In his decision overturning Roe v. Wade and Planned Parenthood v. Casey, Justice Samuel Alito argues that the rulings that had protected abortion rights were not only poorly reasoned but actively harmful to American democracy.
“Far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” Alito writes in Dobbs v. Jackson Women’s Health. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
There are reasons to doubt Alito’s history of the abortion wars. But, more importantly, there is no reason to believe that overturning Roe today will lower partisan tensions in the foreseeable future.
As partisan divisions on abortion deepened over the years, the stakes of the issue became even higher, making each subsequent election more and more important to core Democratic and Republican voters. Abortion — and, more specifically, capturing the Court that could strike down the right to getting one — is one of the key reasons Republicans blockaded Merrick Garland, and eventually got on board with Trump despite their misgivings: He would give them the justices necessary to stop what their voters see as a modern-day Holocaust.
Now, with the issue returned to state and federal legislatures, elections will actually loom larger than ever. “When it seems like the stakes can’t get any bigger, the end of Roe raises them,” says Lilliana Mason, a political scientist at Johns Hopkins University who studies polarization.
Blue states and red states will soon be battling over out-of-state abortions and the national distribution of abortion pills; control over Congress and the presidency could lead to a federal law either legalizing or prohibiting abortion nationwide. The same logic that led Republicans to back an obviously undemocratic demagogue — the consequences are simply too grave for us to let the other side win — now applies on steroids to elections across the country.
American democracy is already teetering on a cliff. The coming abortion wars will make it even harder for the country to step away from the brink.
Asking if Roe polarized America is asking the wrong question
In the six years before Roe came out in 1973, 17 states had reformed their abortion laws, with many following model legislation released by the American Law Institute, a nonpartisan organization of legal experts, in 1962.
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That model was not exactly liberal by modern standards: It banned abortion with exceptions for rape and incest, the health of the mother, and cases where “the child would be born with grave physical or mental defect.” But it paved the way for liberalizing and modernizing abortion policy in the US.
According to Mary Ziegler, a historian of abortion law at the University of California Davis, the spread of ALI-inspired bills “is what the anti-abortion movement mobilized to oppose.” The National Right to Life Committee (NRLC), America’s oldest and most influential anti-abortion group, was founded in 1968 — five years before the Roe ruling. Groups like the NRLC saw the ALI bill as unacceptable, a denial of the essential personhood of the fetus, and pushed for a total ban.
During this pre-Roe struggle, politicians were already trying to figure out how to take political advantage of the emerging national division on the issue. “Richard Nixon was using abortion as a wedge issue in 1972, and already experimenting with how he could polarize the debate to his advantage,” Ziegler tells me. Indeed, Republican efforts on this front yielded one of the most famous attack lines in American history — describing Democratic presidential candidate George McGovern as standing for “amnesty, abortion, and acid.”
The core of the political case against Roe is that it took these trends and supercharged them: turning fights over the presidency and Supreme Court nominations into winner-take-all conflict over abortion while preventing states from experimenting with legislation that could offer a compromise way forward. Whether the abortion debate would have become so deeply polarized absent these conditions is debatable; there are plausible arguments on both sides.
But today, the most important question is not historical but forward-looking: whether repealing Roe can lower the temperature of popular conflict over abortion. And it’s difficult to imagine that being the case.
In Between Two Absolutes, a study of public opinion on abortion by three political scientists, the authors argue that a Supreme Court ruling in 1989 that opened a wider door to state-level regulation of abortion (Webster v. Missouri Reproductive Services) turned abortion into a more salient and divisive issue. The reason, they argue, is that elections now had much greater influence over abortion policy — giving politicians more reason to emphasize abortion on the campaign trail and voters more reason to prioritize it.
An analysis by Andrew Gelman, a political statistician at Columbia University, bears this theory out. Gelman finds that there was very little partisan polarization among voters on abortion until 1992, three years after Webster and the same year as Planned Parenthood v. Casey (which reaffirmed Roe but also further opened up room for state-level regulation). State-level conflict on abortion escalated after that, most notably producing a series of pre-Dobbs restrictions in Republican-controlled states after the GOP’s dominant performance in the 2010 midterms.
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This record suggests that giving states more discretion on abortion does not produce compromise, despite the fact that most Americans have policy preferences somewhere between anti-abortion and abortion rights extremes. Instead, it creates opportunities for state lawmakers to push for more contentious bills — leading to more partisan conflict, not less.
This shouldn’t really be surprising: It speaks to the ways that abortion is both a cause and a consequence of partisan polarization.
As the parties have become more clearly split on abortion, anti-abortion Democratic voters have defected to the other side (and vice versa). The American primary system incentivizes most candidates for office to cater to the dominant opinion in their party, especially in the safe seats that make up the bulk of legislative districts at the state and federal level. So the two parties’ policy positions have grown concomitantly apart: Democrats are less likely to talk about abortion as a tragedy to be minimized, and Republicans increasingly likely to support bans with few exceptions. As the stakes for abortion policy become higher, it becomes harder and harder for people who care about the issue to imagine crossing party lines for any reason.
For this reason, the notion of returning to a pre-Roe abortion politics seems fanciful. Neal Devins, a law professor at William & Mary and a longtime critic of Roe’s effect on the abortion debate, conceded as much in a 2016 paper, arguing that returning abortion to the states today would be more likely to cause more conflict rather than foster a national settlement on abortion.
“Today’s political dynamic is far different than the political dynamic in 1973,” he argues. “Abortion now divides the parties in ways that stand against compromise and deliberation across parties or within parties.”
How Dobbs could entrench polarization
Political polarization is often a vicious cycle: When parties are deeply and bitterly divided, political actors tend to take aggressive actions that lead to even more intense partisan conflict.
There is every reason to expect this to be the case in post-Dobbs America, as red states enact increasingly strict abortion restrictions and blue states try to help abortion seekers circumvent them.
Texas’s state law, which will go into effect soon, will ban nearly all abortions, with very narrow exceptions for maternal health. Meanwhile, the California legislature is working on a bill that would provide funding for abortion seekers from states like Texas to travel there for an abortion if it isn’t legal at home. A draft bill in Missouri would apply its own laws to out-of-state abortions by residents.
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There are also likely to be conflicts between states and the federal government. In December, the Food and Drug Administration issued a ruling allowing abortion pills to be distributed by mail — prompting Republican state lawmakers to try to figure out what could be done to restrict their spread. In a post-Dobbs world, they’ll push even further.
State politics are already increasingly national, with voters caring less about politicians’ stances on local issues than their party affiliation. With one of the most divisive national issues on the ballot in every cycle, the stakes of local elections in competitive states will become even higher — making them not only more nationalized, but also sources of greater partisan strife. In deep red and blue states, candidates will have primary incentives to propose even more aggressive legislation on the issue. As a result, extreme partisanship will become even more entrenched, and the polarization feedback loop will grow stronger.
Justice Brett Kavanaugh, in his concurrence, signaled something almost resembling relief that the high court would be ridding itself of the abortion question and giving the abortion issue back “to the people and their elected representatives in the democratic process.”
But Kavanaugh may find himself disappointed soon enough. The spread of novel state-level abortion laws will yield a tremendous number of lawsuits on largely untested legal questions — lawsuits that will eventually wend themselves toward the Supreme Court. With the Court still being a major player in the abortion wars, battles over its composition will still be (in part) proxy wars over abortion.
Moreover, with Roe off the table, the battle for the White House and Congress becomes more than just a battle over who gets to appoint justices. The debate over passing a national law legalizing abortion everywhere — or prohibiting it — is already in full swing.
Anti-abortion activists often compare abortion to slavery on a moral level, a comparison I fundamentally reject. But on a political level, it’s a more apt analogy: The issue is so charged, and crosses state lines so thoroughly, that political conflict over it is guaranteed to be bitter and zero-sum.
One of the most important political science findings for our understanding our current era is that polarization threatens democracy by raising the stakes of elections. When voters and political leaders view their rivals as enemies, maybe even evil, and elections as existential events, the mutual toleration and forbearance at the heart of democracy wither away. Violating norms becomes imaginable; the boundaries of our politics get tested.
In the Trump era, Republicans have already shown how far they’re wiling to go down this particular road. Protecting American democracy depends, at least in part, on figuring out some way to lower the stakes of partisan conflict: to make elections feel less like a zero-sum competition where one’s fundamental view of the country is on the ballot.
The abortion wars heightened those stakes. Alito’s hopes to the contrary, the end of Roe won’t lead to a deescalation — and has every chance of making things worse.
