I wrote in the most recent issue of the HPR that the Supreme Court would be unlikely to dramatically alter its abortion jurisprudence, regardless of the outcome of the presidential election. My piece was meant to quiet hyperventilating liberals who feared that a McCain presidency automatically spelled doom for abortion rights. Of course, my prediction is now moot: The Court will absolutely continue on its present course of abortion jurisprudence. And if Obama has the opportunity to replace two or three of the Court’s liberals, it will be a decade or longer (depending on when Stephen Breyer and Anthony Kennedy leave the bench) before the Court might shift far enough right to overturn Roe.
Already we are seeing signs that the pro-life movement may become less Court-focused. After all, when you believe that a genocide targeting American babies is taking place, waiting a decade before having a chance to stop it is not an option. Many are speculating that the pro-life movement is about to split: between those who are open to social welfare programs (and possibly contraception and comprehensive sex education) in order to reduce the number of abortions, and those who think that their goal must be to stop all abortions rather than making them “safe, legal, and rare,” in the famous Clintonian formulation.
If pro-choice advocates can ally with even a small segment of pro-lifers, a lasting abortion compromise might be feasible. Pro-choicers have stomached abortion restrictions for decades; if they had to accept, say, a national parental notification law in order to get the pro-lifers to stop threatening to overturn Roe, support social welfare programs many liberals support independently of the abortion issue, accept the importance of contraception and renounce abstinence-only dogma, I sense that the pro-choicers would take that deal.
This may well be where public opinion is headed. There has always been a larger “middle” on the abortion issue than either Planned Parenthood or the National Right to Life Committee is willing to acknowledge. But my fear is that pro-life congressional Republicans will never sign on to such a plan. They would sense that an abortion detente might harm their chances in socially conservative but economically populist districts. (Besides, they are just as opposed to “social welfare” in general as Democrats are in favor of it.) Furthermore, if they voted for something like the Pregnant Woman Support Act, a bill sponsored by pro-life Democrats, they might face primary challenges from Republicans more committed to the “end all abortion everywhere” side of the debate. Of course, bills like that might still pass, given the size of the Democratic majorities. But without more than token Republican support, they won’t really represent a lasting abortion compromise.