Roe v. Wade is gone. By a 5-4 majority (Chief Justice John Roberts joined the particular decision allowing a pre-viability abortion ban in Mississippi but didn’t vote to overturn) the Supreme Court of the United States has struck down the 1973 case that established access to abortion as a constitutional right across the United States. It is no longer the case that abortion is constitutionally impossible to ban. It is a historic day.
This does not mean that abortion is banned across the US. It means that individual states can now set different abortion laws, which can be everything from abortion up until birth (New York) to a a total ban on abortions except when needed to save the life of the mother (Arkansas).
But it is still a historic day. The most powerful country in the world has reversed course, and made a huge legal change in favour of universal human rights. It is now possible for a state to recognise those rights for pre-born children. It is possible for the pro-life movement in the United States to work incrementally to have those rights protected across the nation, without a hard ceiling being put on those efforts by the Supreme Court. It is a great day for the United States.
It’s also a great day for the world. This is proof that the arc of history on this issue does not only bend towards fewer and fewer restrictions. It shows that it is in fact possible to make changes towards greater legal protections for pre-born children. That is inspiring, uplifting, glorious. A new field of possibilities has opened.
But they are only that – possibilities. To make those possibilities a reality, the pro-life movement will need to change, and do many things very differently to how we did them before. The strategies that have brought about the end of Roe will not bring about the end of abortion in the States. They will certainly not bring about the end of abortion in Ireland, and any attempt to copy them will end in disaster.
Why? Well let me start by giving credit where credit is due. This is a victory for the ‘traditional’ pro-life movement. There’s no two ways about it. It wasn’t new pro-lifers, secular pro-lifers, consistent ethic pro-lifers, or pro-lifers focused on dialogue and conversation that won this. It was won by old-school (well, not that old-school), conservative pro-lifers mostly focused on political lobbying, electing Republican majorities, and cultivating and appointing conservative judges. I, for one, did not think they would succeed: I thought overturning Roe would always stay somewhere over the rainbow, buying pro-life votes for Republicans for evermore but always falling just short of actually happening. I was wrong. I am delighted to be wrong. If, as I do, you think that the end of Roe is a colossal victory for humanity, it’s pro-lifers of this sort that deserve the credit for it, and I give it to them wholeheartedly.
“But hold on a minute” you might say. “You just admitted you were wrong about whether these kinds of strategies would overturn Roe. What makes you qualified to say anything about how well they’ll work in the future?”
Reasons the old pro-life strategies won’t work in a post-Roe age
1. People are becoming more pro-choice, not more pro-life.
First of all, it’s a fact that Roe overturn has not been achieved without serious and worrying costs. If you look at national polling on abortion in America, the process of overturning Roe has been accompanied not by decreases, not increases, in pro-life views. Gallup’s tracking poll measures the number of people who identify as pro-choice vs pro-life over time. This year 55 per cent of people identified as pro-choice, the highest number since 1995 and close to the highest number on record. A year ago it was 49 per cent. By contrast the share identifying as pro-life has gone from 47 per cent last year to 39 per cent this year.
Now “pro-choice” and “pro-life” can be notoriously fuzzy terms. But people’s views about the ethics of abortion have also clearly changed, and in the wrong direction. Gallup reports that since last year the percentage of people thinking abortion is “morally acceptable” has gone from 46 to 52, while the numbers thinking it morally wrong have correspondingly dropped from 46 to 38 per cent. This the first time an outright majority have taken the pro-choice position on the ethics of abortion since Gallup started tracking the question in 2001 (interestingly, the tracked year in which highest percentage of people thinking abortion was morally wrong was 2009, in which 56 per cent did). 58 per cent of people oppose overturning Roe itself.
As we learned to our cost in Ireland, you can have laws that are as good as you like on abortion, but without popular support for those laws they won’t last. And our legal situation was much better for the unborn than the current one in the US is. Every state could make abortion legal and Dobbs VS Jackson would do nothing to prevent that: all it does is allow each state to set its own laws.
So the current pro-life strategies have delivered legal victories but also a pro-choice turn in public opinion. Reversing the latter will require doing something else. That something else is emphatically not embracing anti-vax conspiracies or becoming associated with claims that Joe Biden stole the 2020 election. We need to find better, more compelling ways to engage in dialogue with pro-choice people and bring them around to the cause of universal human rights, or in time today’s victory will be hollow.
2. Hard cases are coming
American controversies are big news here: and we are about to hear a lot about a lot of hard cases. Chief among them will be medical ones. There are going to be American Savita Halappanavars. It is not true that abortion bans inevitably lead to worse outcomes for women: Savita herself could have been saved without abortion being legal, and even with the many non-abortion-related problems with its health service, Ireland had a very low maternal mortality rate before repeal, lower than the UK’s or France’s. But laws can be badly drafted, they can be misinterpreted, or they can be used as excuses for medical incompetence all the time. What’s more, lots of the states that will ban abortion do not have anything like as good maternal healthcare as Ireland.
So pro-lifers in the US will have to become supporters of excellent maternal healthcare to the extent that they aren’t already. That doesn’t mean just paying lip service: it means actually lobbying in an organised way for this as a pro-life priority. It certainly means calling Republican congressmen to give them hell if they vote to defund maternal health care.
Medical disasters aren’t the only kind of hard case that’s going to be more common now. Some of these will be cases that pro-life and pro-choice people should be able to agree upon. Texas’s abortion law, for example, rules out criminal penalties for women who have abortions, but that didn’t stop a prosecutor from bringing charges against one woman until they were eventually dropped. Worse still are the cases where women have been prosecuted for miscarriages. Every incident like this will make abortion bans look cruel and inhumane, and pro-lifers will need to be on guard against them.
To persuade people that legal protections for the unborn are worth passing and keeping, pro-lifers need to actively build societies in which women and their babies are valued and protected, and be seen to do so.
3. To end abortion across the world you have to convince a lot of people who have yet to be convinced
Irish pro-lifers (and indeed pro-lifers across the world) should take inspiration and hope from the end of Roe. But it would be very foolish for us to think we can bring in better abortion laws by similar means.
The United States is in many ways an outlier in Western countries when it comes to anti-abortion views. In Ireland, or the UK, or France, there is no big party to vote for that supports legal protections for the unborn. Nor could there be one when the numbers of pro-life people (never mins ones that actually vote with abortion as a key concern) are so miniscule. We love to say that a third of the electorate voted against Repeal, but as things stand that number is only going to shrink due to generational replacement. And as will keep saying until we’re blue in the face, polls consistently reveal that only a much smaller number of people care enough about abortion to vote based on it in elections. Before any political action could be successful many many minds will need to change. (Of course that picture is too simple. Political action can often lead to changes in opinions, but it’s a waste of time to seeking political changes that presuppose rather than try to build that change.)
Much the same could be said about blue states in the US. To end abortion nationwide requires convincing city-dwellers, younger people, the non-religious, and other groups that have tended pro–choice for a long time. No one has yet figured out how to persuade majorities of people in these demographics to embrace human rights for all humans. But doing so is essential if we want to protect those rights in a way that sticks.
For these and other reasons, this is a “Thank Churchill, vote Labour” moment. One set of strategies has won the day for human rights today, and it is a great day. But we are now faced with many new challenges, and with them comes the need for new thinking.