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The Myth of the Anti-Roe Majority

Will Baude slums it in the New York Times this weekend (seriously, congrats on that, Will), arguing that if Roe v. Wade is overturned then chaos shall reign and the heavens shall tremble in their moorings. Specifically, he worries that anti-abortion states will not only criminalize such procedures within their own borders but also criminalize crossing state lines for purposes of abortion, curtail the movement of pregnant women through child custody laws, or use extra-territorial provisions to convict women for having abortions in other states. (He also worries that, "Just as Utah could make it a crime for a resident to go to Rhode Island for an abortion, Rhode Island could forbid Utah's law-enforcement officials from interfering with her decision to get one.") Will is concerned that the federal docket is only kept from such a flood of litigation by the protective dike of Roe.

Of course, Will is engaging in the intriguing game of political haruspicy, divining from the entrails of the body politic what will happen if kings (or here, kritarchs) exercise the royal perogative. All Will's gnashing and wailing rests upon a single assumption: that, in the event of a Roe-reversal, there will be states that in at least the medium term ban abortion.

Many take it as self-evident that no-Roe implies that abortion will become illegal in certain states, and there is some justification for this. After all, there are states that have laws to prohibit abortion in the absence of Roe. But these are all considerations of the very short term, and neglect the beauty of Roe for the cowardly politician. Automatic trigger provisions were enacted by legislators who knew they need never worry about horror stories of women denied access to abortion or especially of young girls dying in alleyways. Much of the "pro-life" movement is bolstered not by any grand moral consideration, but by a rather cynical calculation: when a legislative enactment will have no force, single-issue voters are more likely to punish a politician than moderates. Yet banning abortion, particularly in our sex-saturated society, has immediate (and media-visible) consequences that will swing voters.

Hence, when I run my fingers through the political entrails, my expectations for the post-Roe chaos differs dramatically from Will's. Even if certain states did have automatic bans that kicked in within a few years, these states would change their tune as politicians in anti-abortion states fell to their challengers. Indeed, I would expect that the duct-tape that holds the evangelical and economic wings of the Republican Party would fray even further. The "patchwork quilt" Will worries about would actually cover a much narrower range of issues. Does a woman need to notify her partner, or a child her parents? Can an older man take a child across state lines to get an abortion? But a state using "long-arm" authority to put a woman in prison for getting an abortion in another state. . . . well, let's just say I don't want to be working on the re-election campaign for any Republican who backed that bill.

The abortion battle ended many years ago, and pro-life warriors stand as obstinate irredentists. Roe merely prevents any form of reasonable armistice from being declared, and it is that armistice that would prevent the post-Roe "chaos" Will fears.

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