What Happens If Roe Falls? An Interview with Ross Douthat
In this month’s interview feature, Ross Douthat analyzes the current state of the pro-life movement. He discusses how that movement might change after the pending Supreme Court case Dobbs v. Jackson Women’s Health Organization, in which the Court has been asked to overturn Roe v. Wade. He goes through the likely strengths and weaknesses of the pro-life cause in a post-Roe world, and offers his own advice for how pro-lifers can best prepare for that world.
Ross Douthat is a columnist for the New York Times and the film critic for National Review. He also posts at douthat.substack.com. His newest book, The Deep Places, is a memoir of his own experience with chronic Lyme disease. He was interviewed on October 12, 2021 by Contributing Editor Daniel E. Burns. The transcript has been edited for clarity.
Daniel Burns: Right now, in October 2021, where are we in the history of the American pro-life movement? And what is that going to mean for the future of the conservative movement more generally?
Ross Douthat: Well, we’re in an ambiguous limbo in between sweeping, dramatic victory, and devastating, generational defeat! And the answer to which of those actually lies in our future rests . . . in the hands of Brett Kavanaugh and John Roberts, I guess.
And obviously, there’s a zone in between those two scenarios, which is in certain ways the smart-money bet for Supreme Court jurisprudence: that there will be some version of what always gets described as “chipping away” at Roe v. Wade, some kind of decision in the Mississippi abortion case that does not actually overturn either Roe or Casey outright, but just clears more space for, most likely, second-trimester abortion bans.
If you’re just doing political analysis, that seems incredibly plausible. At the same time, it’s something of a struggle to figure out what the conservative judicial arguments marshaled on behalf of that kind of halfway step would be. Which is why I do think that the two starker scenarios are still almost the more likely ones.
DB: Okay then, let’s go through those three scenarios. One is that Roe—and I guess when we say Roe, we’ll say we mean Roe/Casey, the whole regime—
RD: Yep.
DB: One is that Roe gets overturned, or basically overturned. Another is that it gets reaffirmed. And somewhere in the middle is that it gets somehow “chipped away.” For each of those three, what are you most worried about? What should we find most worrisome about each of those three possibilities: as pro-life people on the one hand, but also more generally, just as Americans?
RD: Well, the most immediately worrisome thing about the reaffirmation-of-Roe scenario is that the pro-life movement’s quest to subject abortion to restriction would in an important sense have failed. And that failure would obviously have stark consequences, in the form of tens if not hundreds of thousands of abortions in the United States every year that might have been prevented by the force of law had Roe been overturned.
For the long term, it also would leave the pro-life movement’s political strategy in a certain kind of disarray. I think the pro-life movement has made certain political and moral compromises in its alliance with the Republican Party, which is an inevitable part of politics, and in its alliance with Donald Trump, which I think has been a more extreme form of moral compromise. And to make those kinds of compromises and gain nothing would be a pretty sweeping defeat. I don’t know what exactly it would mean for the pro-life movement. I think that in the kind of circles that you and I move in—you know, sort of pseudo-intellectual conservatives . . .
DB: . . . not that there’s anything wrong with it . . .
RD: Meaning no offense to anyone! I define myself as a pseudo-intellectual conservative. But in those circles, it would clearly lead to a further radicalization, both against originalism as a theory of constitutional interpretation, and against small-L liberalism as something that conservatives should be trying to protect and defend. How defeat manifests itself in electoral politics, internal Republican coalition politics: all of those, I really have no idea.
DB: Really? Because that’s the next thing I was going to ask you about.
RD: Yeah, I don’t know. I mean, it certainly would manifest itself in some sort of grassroots anger against—well, assume in this scenario that it’s Kavanaugh and Roberts who joined the liberals. So it would manifest itself in an anger against them, against the Federalist Society, against inside-the-Beltway conservatives. But how that would then cash out in actual electoral politics? I don’t know.
I think it’s pretty clear from watching Republican politics over the last decade that abortion has not been the primary motivator of any kind of grassroots insurgency within the party. There’s been a kind of general pro-life consensus, with some arguments about tactics and strategy. But there’s no equivalent of the kind of insurgencies that have happened around, first, deficits and spending in the Tea Party era, then immigration in the Trump era. I’m kind of skeptical that you would have some kind of immediate pro-life insurgency, explicitly against Republican politicians—who had, I guess, voted to confirm Brett Kavanaugh? I don’t really see how that realistically plays out as a mass mobilization phenomenon.
Instead, I think pro-life disillusionment would mostly manifest itself by feeding into the heightened feeling of alienation that is just a sort of defining feature of conservative politics these days. So you could imagine, you know, a sense of betrayal over abortion contributing to the appeal of certain QAnon-type theories about global elites. I can totally see that happening at some level that is hard to measure in opinion polls. But I think that kind of psycho-political effect is more likely than some sort of immediate, “You have to promise to impeach Kavanaugh if you’re a Republican primary candidate” campaign.
DB: What about the other two scenarios: Roe gets “chipped away” or overturned?
RD: So the chipped-away theory is the lowest-salience result in terms of our politics. I think that going from a world where abortion regulation is possible (within limits, obviously) after twenty weeks, to a world where it’s possible (within limits) after twelve weeks, takes us, as lots of people have pointed out, closer to the kind of European compromises on abortion, and slightly closer to where public opinion actually is. And as such, I think it would be treated as a modest but real victory by the pro-life side, without being a hugely powerful motivational issue for liberals. I think you would get some kind of surge of pro-choice or pro-abortion activism, but it wouldn’t be incredibly dramatic. And you would basically have a number of red states moving to regulate abortion along this hypothetical line, and probably doing so reasonably successfully, without it really changing the politics of abortion in this country. The Mississippi law is a fifteen-week ban, right?
DB: Right.
RD: So we’re talking about a scenario where the Mississippi ban is upheld, and some new standard is articulated that basically says that it’s not an undue burden on a pregnant woman to regulate abortion after ten to twelve weeks, let’s say. But it is an undue burden to do so before ten to twelve weeks, and therefore, first-trimester abortion remains a constitutional right. Second-trimester abortion is subject to regulation as the state sees fit. So that again, is the most politically plausible ruling, independent of jurisprudential issues. It’s the ruling that you would imagine John Roberts issuing if he didn’t have to make any kind of constitutional argument. [laughs]
DB: No comment.
RD: Well, you know, they’re politicians, too. And for that reason, it’s the most politically plausible move for a cautious court, in part because it maps onto public opinion reasonably well, and wouldn’t cause a huge tectonic disturbance in American politics.
DB: So let’s hear about the tectonic disturbance if it gets overturned.
RD: Well, right. So now scenario three is, Roe and Casey are simply overturned. I do not imagine that scenario four, where the court declares . . .
DB: No, no, no.
RD: Right, we don’t need to go into scenario four. [laughs] So in scenario three, the Court simply overturns Roe and Casey and says, you know: “This has been a failed experiment in legislating from the bench; there is no constitutional right to abortion; it has to be hashed out through the democratic process.”
And the immediate consequence, what we can say for sure, is that you have a series of state-level battles over abortion law, and particularly in states that have trigger laws in effect, which would outlaw abortion in some way if Roe is overturned. So you have a series of political battles in red and reddish states over those issues. And if you were just analyzing it in terms of where public opinion is, you would say: Those battles would happen, and you would reach an equilibrium where a handful of states banned abortion in some thoroughgoing way, a larger number of states had, in effect, versions of the heartbeat laws that red states have already passed, and you’d have regulations where the ban starts between six and twelve weeks. That would be in red and reddish states. Then you would have a lot of blue states that would probably follow New York and effectively codify as liberal an abortion regime as possible. And then you’d have somewhat indeterminate outcomes in true swing states.
That’s just following public opinion, and trying to imagine where this settles. But there are a lot of factors that are somewhat unknowable. We don’t know what happens to national political debate in this landscape. You know, the House of Representatives just passed an attempt to basically codify Roe in federal law. That would presumably become the Democratic Party’s position in every election. And abortion polling is famously fluid, and sensitive to the questions that are asked. According to abortion polling, most Americans support Roe v. Wade, and most Americans support abortion regulations that Roe v. Wade ruled out. So if you get rid of Roe v. Wade, which impulse actually controls how people vote? Nobody knows for sure. How salient is the issue? Is it something that flips a substantial number of voters from Republicans to Democrats, in the event that you have the possibility of national legislation up for debate, or in the event that state laws have been passed that a number of the pro-choice, or cross-pressured, Republican voters don’t support? We just have no idea. And I think it’s okay to say we have no idea.
DB: Well, I think it’s okay to say that we, the readers of Public Discourse, have no idea. But even if you don’t know for sure . . .
RD: Well, let me talk about reasons for agnosticism. The last time we had a semi-normal, non-judicialized political debate in this country about abortion was in the 1960s to early 1970s. Back then we did a version of what we would, not theoretically, but actually do, in the event that Roe is overturned. We had a lot of state-level arguments about abortion, a lot of tugs-of-war back and forth in state legislatures, a lot of shifting laws on abortion in a very short amount of time.
In that environment, two things were different. The first difference was that America was a more religious and conservative country. And the country was less polarized by religion. So you had a world where debates about abortion in a place like New York State, that had a large population of pro-life Catholic Democrats, could imaginably take a real pro-life turn. Abortion was contested in what are now blue states in ways that are not imaginable today. And by the same token, in Evangelical America, the pro-life movement was not at all a consensus position. So there wasn’t this sense of, okay, there are red states and blue states, and the country will divide on abortion the way it divides on political partisanship.
So that’s different now. And because we have that polarized dynamic, it’s harder to push issues down to the state level or keep them down at the state level. So that dynamic alone pushes us toward a more nationalized abortion debate, and ultimately, potentially, a more national resolution, in the form of congressional battles and legislation signed by a president whenever his party has full control of government. So that’s a structural change.
And then the fact that America is less religious, and less socially conservative, than it was fifty years ago—the Catholic Church especially is much weaker as an influential institution than it was fifty years ago—those kinds of trends should make you expect that nationalized battle would end in some kind of pro-choice victory. Because the country has liberalized dramatically since 1972 on almost every issue save abortion. But abortion has been removed from certain kinds of debate. And so if you take a more socially liberal country, and revive the abortion debate in that country, with all of the powers that mass media and elite institutions can theoretically bring to bear, you would expect the pro-life side to be at more of a disadvantage than they were fifty years ago. That, I think, is one reasonable way to analyze things.
However, the other thing that has changed from fifty years ago is that, fifty years ago, abortion was part of this sense of transformative liberation that we associate with the early days of the Sexual Revolution. It was a world where the desire for a certain kind of sexual freedom was an incredibly powerful force in American life. And in our world, even though the country is more socially liberal, the desire for sexual freedom as this kind of next-stage goal is not nearly as powerful. The tendency within liberalism itself is toward stricter regulation of sexual behavior than was the case thirty years ago. The tendency in American society is toward people having less sex than they did thirty years ago. We’re sort of living after the Dionysian moment, after the release of liberated sexual desire. We’re in a somewhat more sterile and disillusioned world. And in that world, the idea that you need perfect sexual liberty is still a defining part of the liberal, and especially elite-liberal, consensus. But the energy behind it, I think, is a lot weaker than it was.
And that raises questions, I would say, about mobilization in abortion politics. There are a lot of people in America who are lukewarmly pro-choice, who want some kind of right to abortion, but are deeply morally uncomfortable with what abortion obviously is, and also are living in this somewhat demoralized post-sexual-revolution landscape—as opposed to a landscape where sexual liberty was something you were claiming, and anything that stood in your way, including something like restrictions on abortion, needed to be overcome for the sake of the Better World to Come. So in that landscape, I don’t know how successfully the pro-choice movement mobilizes people who might agree with them in opinion polls but might not end up voting on abortion, the way maybe they would have forty or fifty years ago. Whereas the pro-life movement’s intensity and moral zeal, maybe, has the capacity to win some battles that you wouldn’t expect them to win if you just looked at the polling on abortion, let alone other social issues.
That is probably the best-case scenario for the pro-life movement in the short term. It’s not that Roe is overturned, and you wake up the next day, and everyone listens to pro-life arguments and becomes pro-life. It’s that Roe is overturned, and there’s this sort of lukewarmly pro-choice majority, but when states pass restrictions on abortion, many people decide to live with them, rather than be mobilized against them.
DB: The way you just laid out the new structural weakness of the pro-life movement relative to fifty years ago: that’s not something I hear nearly any pro-life person talk about. How do you think that the pro-life movement in general would be behaving differently if it were more cognizant of those weaknesses?
RD: My basic take on pro-life strategy is always just that the pro-life movement is asking for a world whose implications require more interventionist government policy, to help women with unwanted or unexpected pregnancies. And the fact that the pro-life movement has ended up allied with the more libertarian political party is a challenge for making that case.
The day you pass pro-life legislation, if you’re trying to win people over, should also be the day that you are passing new spending bills to support adoption, to support pregnant mothers—to support, not just crisis pregnancy centers, but crisis first-two-years-of-life centers! And that doesn’t have to mean bureaucratic welfare-state spending. But it means some kind of spending, in a way that I think many people active in the pro-life movement are comfortable with. Many people in the Republican Party institutionally are obviously not.
The pro-life movement cannot, tomorrow, restore the strength of institutional Christianity from fifty years ago. It doesn’t have the capacity to change the social realities in which it’s trying to make its case. It does have some power to change the suite of pro-life policies that it’s offering. And so, I think, any consciousness of pro-life weakness points very quickly to the need for the movement to present itself as offering a suite of pro-family policies, not just regulation and restriction.
DB: Do you actually think that would move voters? Because I assume it’s not going to get much reported on. Those aren’t the aspects of our own Texas bill that have gotten much reported on. Given the strength of the media, and other intellectual institutions you were talking about, since they won’t be interested in those aspects . . .
RD: Well, I think that the structure of the Texas bill . . . I think you sort of have to shout, basically.
DB: I’m not saying the Texas bill was adequate.
RD: Right. I mean, there are impediments where if you pass a ban on abortion, and that also includes X million dollars for adoption funding, the media is mostly going to report on the ban. But you do have some control over those optics in terms of what you’re highlighting and talking about. And there’s also an issue here, where politicians don’t like talking about abortion, for understandable reasons. So even when they’ve passed pro-life legislation, they’d rather just not talk about it at all. And what you actually need to do is talk about it in a holistic way, where you’re highlighting the things you were doing to help people with unexpected pregnancies. But yeah, I think you have to shout, basically. You have to say: Look at how much money we are earmarking for this! And maybe the media doesn’t report on it fairly. But if you are doing it loudly enough, you can get at least some attention for it, I think.
And there is part of the media that is interested in reporting on these kinds of things. Even the “liberal media,” as we say, harbors some doubts about abortion, I think, and is open to the idea of a pro-life movement that is somewhat distinct from Republican politics as usual. That would get reported on by at least some people.
DB: Now to follow up on the other thing you mentioned, the post-sexual-revolution anomie, the lonely and sexless landscape of 2021. Let’s go with the maximalist scenario and just say Roe gets overturned. How does that affect relations between the sexes? How does that affect the things you were just talking about?
RD: Well, it has a bunch of cross-cutting effects. On the one hand, it’s one reason abortion rates have fallen. If you have people having less premarital sex, and less sex in general, and the sexes aren’t pairing off successfully (even in casual encounters), then you’ll have fewer unwanted and unexpected pregnancies and fewer abortions. You know, the abortion rate has fallen for a lot of reasons, and some of them have to do with actual pro-life victories or cultural gains. I think the development of ultrasound technology changed the way people think about abortion at an intuitive level, relative to forty or fifty years ago. And pro-life laws, to the extent that those have been possible, have also had an effect. And those are good things. But part of what pro-lifers are looking at when they see falling abortion rates is the corollary of this . . . romantic decadence (for want of a better term!). And again, I think what that creates is a landscape of people who, you know, are not immediately ready to embrace the vision of human flourishing that the pro-life movement is selling, but have a little more indifference to the socially liberal vision than you might think from just looking at their opinions on a set of moral questions.
Our landscape encourages indifferentism, generally. It encourages checking out a bit from visions of the good life, whether they are liberal or conservative, pro-life or pro-choice. It’s not good for society in general that that’s what’s happening. But it presents a different kind of opportunity for the pro-life side than the world of 1971 did.
DB: And what about the other way around? You’ve said how this landscape would affect pro-life politics, but how might the sudden cutoff of access to abortion (in many states) affect dating life?
RD: Sorry to keep saying I don’t know! I don’t know.
One thing we’ve seen with changes in contraception just over the last five or ten years is the increasing influence of Depo-Provera, long-acting contraception, that itself has uncertain impacts on dating and commitment and marriage. And changes in the kind of contraception that women use—I don’t think we even know yet what effect that has had on the sexual and romantic landscape. So abortion restrictions would have equally uncertain near-term effects on dating culture.
I’m enough of a believer in holistic understandings of cultural renaissance and reform that I do think, over the long haul, you would expect a world where the option of doing away with your unborn child was not immediately available as an option for couples, to be a world that produced healthier romantic dynamics between the sexes. I believe that. But I would not assume that it would manifest itself in the first three to five years after a state passes a fetal heartbeat law. You’ve got a lot of different variables at work. And a lot would also depend, again, on what the pro-life movement itself is doing next. Does this end up being seen as the punitive return of patriarchy, which is obviously how it’s being covered in many, many places? Or does the pro-life movement itself succeed in framing this as part of a vision that is actually better for women, families, human happiness, in the long run? And that debate happens both at the level of how people behave, and the choices they make, and also at the level of the arguments that people have about the underlying situation.
The case for pro-life pessimism is that you have places like Ireland that had, for a long period of time, the kind of laws on abortion that the pro-life movement wanted and wants to have in the United States. And from a certain perspective, it seemed to work in ways that defied pro-choice expectations. Ireland had low maternal mortality rates. Ireland did very well in terms of female educational attainment and professional success. Ireland seemed to invalidate some of the worst-case scenarios of pro-choice feminism, that bans on abortion would lead inevitably to maternal death on a large scale and an impossibility of female professional life. And obviously, the availability of abortion just across the Irish Sea in England had some effect on that. But even allowing for abortions in England, there were still far fewer Irish abortions than in similarly-situated countries—which meant that Ireland was seen, from a pro-life perspective, as at least partial vindication for pro-life arguments.
But that did not prevent the people of Ireland from becoming steadily more pro-choice, and ultimately voting to do away with their constitution’s abortion ban. Now you could argue that Ireland is always thirty years behind the rest of the Western world, and so what you saw in the Irish referendum on abortion is just the American abortion politics of 1980. And the American abortion politics of 2021 are radically different. That would be the optimistic pro-life argument. But you do have to reckon with the reality that even what seemed to pro-lifers like a reasonably successful, pro-life-but-modern combination, in Ireland, ultimately ended in a pro-choice victory—a non-Supreme-Court-imposed, extremely small-d democratic victory for the pro-choice side.
DB: Well, so far I’ve failed at two things. One of them is to end on an optimistic note and the other is to get in a hook for your new book. Do you want to say something about your new book?
RD: No, it’s fine. We can just say I have a new book and that it’s terrific and everyone should buy it to find out what’s in it.
But to end on an optimistic note: I do mean what I keep saying, that the unknowability that I’m stressing is itself a reason for pro-life optimism. I think that if you just look at the polls and do some quick and dirty political analysis, you would say that overturning Roe leads to very modest pro-life gains in a very modest number of states. And an equilibrium at that point is the best-case scenario for the pro-life side. That’s the most reasonable prediction. But the cultural landscape in which we’re having this debate really is very different from the cultural landscape of fifty years ago, and the pro-choice side’s vision of the good life really is somewhat exhausted-seeming, and in certain ways depressing, I think. There is a lot of fluidity and malleability of opinion on these issues. There are lots and lots of people who are lukewarmly pro-choice who know that abortion is wrong. And that means that if you create a new legal and political landscape overnight, not knowing what’s going to happen means that there are real opportunities that offer reasons for optimism. So not knowing what’s going to happen is, in certain ways, really good news for the pro-life side.