Once Kavanaugh has been confirmed, the Supreme Court may overturn Roe, or it may just kill it with a thousand cuts. The result will be essentially the same: in red states, abortion will be effectively illegal; in purple states, it will be severely limited; and in blue states, the status quo will prevail. The result, obviously, will be a patchwork.
The questions for today are:
- Will overturning Roe be a poisoned chalice for the GOP? Will women rise up and vote Republicans out of office en masse in red states?
- Will either side accept the patchwork solution?
My responses are:
- Based on what has happened in red states to date, the answer is no. The GOP has not paid any obvious price for supporting very strict limits on abortion as of today, so why should things be any different in the future?
- No. Both sides have principles that they cannot compromise. For the red side, abortion is murder; for the blue team, it symbolizes freedom and equality for women. As a result, if Roe is overturned, both sides will fight for a federal solution governing all fifty states. The resolution of the issue, therefore, would be tied up with the fate of the filibuster (which would be put in unprecedented jeopardy) and the composition of Congress. A blue or red wave election, or the abolition of the filibuster, could result in national abortion legislation; otherwise, it will continue to be regulated at the state level.
It is interesting to note that any federal legislation either permitting or banning abortion throughout the country would have to be based on the commerce clause, and would be challenged legally. The Supreme Court would consequently be ruling on whether either side could bind the entire country on this issue. If the Court struck down the legislation, in an odd way, both sides would lose, and the federalist compromise would prevail.