A referendum on Roe v Wade but then what?

It has been well discussed lately that the untimely death of Antonin Scalia is igniting a fight in Washington with the Democrats and Republicans wrestling over which President gets to appoint a successor. What I think it is more interesting is the impact this series of events will have on the discussion topics during this election cycle. Serious issues of gun control, affirmative action, and abortion will replace the circus of giant-wall building, mass deportation, and who took money from whom.

In fact, some have speculated that the conversation shift will ultimately turn into a referendum on Roe v Wade. Just as Bernie Sanders has made it clear that his nominees would have to commit to overturning Citizens United, every Republican candidate will eventually promise to appoint a justice willing to fight for the rights of the unborn. Eventually the Dems will be dragged into the conversation and will promise to nominate one of the opposite leaning. And for the first time in 40 years’ abortion will be put to the vote.

Following which, absolutely nothing will change.

Republican candidates have built their primary election platforms on right to life promises for decades. Candidate after candidate has sworn up and down that he would be the President to repeal Roe v Wade. Our conservative politicians make promises early in the election cycle to invigorate their evangelical supporters and then forget all about them once they make it into the general election. Following victories, many have nominated justices who should have been able to make a difference. But not a one of them ever even got the ball rolling.  There are many consistently hollow promises in Washington and one of them is “I will end abortion in America!”

CIVIS

The simple reason this is the case is that overturning Roe v Wade would be nothing short of political suicide for the responsible President and his associated party.

Consider that most of the voters in America are women and most of those women are pro-choice. In general, women vote like men with the economy and jobs as their biggest concerns, but while men don’t have a shared motivating issue that gets them to the polls and puts their check books to work, women’s most important threshold voting issue is abortion. Pro-choice women are likely the most powerful dormant voting bloc in the country.  This army of voters would come out in numbers unlike anything we have seen before. Incumbents from the Executive on down would be run from office.

But the movement wouldn’t stop there. This group also has tremendous fund raising potential. While their male counterparts are already pushed to the limit of their political giving, women currently give at less than half the rate of men and when called on, could raise unheralded sums. These funds would go to pro-choice lawyers and political action groups who would fill the judicial system with lawsuits. Some out of spite, some out of strategy, but all with the intent of creating a new precedent for federally legalized abortion.

No one would want to reinstate Roe v Wade. It’s a well-known fact among legal scholars from both sides of the aisle that it is a terrible piece of legislation. It is poorly reasoned, not grounded in law, and lacks intellectual legitimacy.  Without getting too academic, one of the laws many flaws is that it is based on the constitutional right of privacy which does not exist. Another is that it claims not to opine when life begins, but then forbids states from regulations that place life’s beginning prenatally. A third is that it forbids due process with respect to abortion even though due process is a prerequisite of personal liberty. If, you are thinking, “no way, he must be biased,” I am not.  Try a Google search of “problems with Roe Vs Wade” and read what the legal scholars say.

The legal left knows that Roe v Wade is a specious argument that is ripe for turnover. Meanwhile its sloppy shortcomings are exactly the fuel that keeps the pro-life’s hope furnace burning. And that pro-life movement is already going at pretty much full-steam. If pro-choice America found their reproductive rights seriously threatened, if the Supreme Court actually followed through on the conservative promise to end federally legal abortion, a sleeping dragon would be awake unlike anything the American political landscape has ever seen. Pro-choice voters, vast sums of money, political action groups, and thousands of liberal lawyers would mobilize under the banner of finding a new precedent for federally legalized abortion and creating a new law that was better constructed, based in sound legal arguments, and would stand up to the toughest scrutiny the right could throw at it.

It wouldn’t be all roses for the left. If Roe v Wade were overturned, there would be a period of time when abortions would not be legal at the federal level (they would still be legal in many states). However, the end result would be an environment where a woman’s right to a legal abortion was more strongly protected than it ever has been. What seems like the worst thing that could ever happen to the pro-life movement would probably end up being the best thing that could ever happen for abortion rights.

Consider what I say. If you are woman (or man) who votes only on the issue of abortion rights, you are wasting your vote. Stop worrying, it’s not going to change and if it did it might be for the better.

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