Anti-abortion activists like to analogize abortion to slavery. Whether you agree or disagree with them, the analogy is clearly accurate on one point; when the Roberts Court is done dealing with the issue, the country will be divided into states in which abortion is either facially or just effectively banned, and states in which it is robustly protected. It is an updated version of America in 1860. The house divided, if you like, based on “popular sovereignty.”
The question for today is, what happens next? To extend the analogy one last step, the abortion abolitionists aren’t going to be satisfied with controlling half the country. They are going to do everything they can to impose the ban on the blue states, as well.
How can that be done? This is where it matters whether the Court overturns Roe or just applies a pathetically weak level of scrutiny to state abortion regulations. If the latter, the abolitionists have no remedy other than a constitutional amendment, which will never have enough support to pass. If the former, however, the abolitionists will have two legal options: federal legislation; or a re-interpretation of the Fourteenth Amendment to treat fetuses as “persons.”
The ability of the right to get legislation banning abortion through Congress depends on the fate of the filibuster, since it is very unlikely that the GOP will ever have 60 votes in the Senate on this issue. Ironically, the Sanders left may at some point cooperate with the abolitionist right to get rid of the filibuster. More on that issue in a later post.
The other alternative is to persuade the Supreme Court to treat fetuses as “persons” for purposes of applying the equal protection provisions of the Fourteenth Amendment. Any such interpretation would be incredibly ahistorical, and would be a total embarrassment to anyone who claims to have any respect for precedent. For that reason, I can’t see Roberts ever going along with it. With the other four so-called “conservatives,” however, it is a different story, and it is easy to imagine the “personhood” approach getting at least four votes with the current Court. Just subtract one more liberal, and it could happen.