What History Tells Us about Overturning Roe v. Wade

One of the effects of overturning Roe v. Wade is that it will make the culture wars and political polarization much worse (though those concerns are secondary to the civil rights implications and coming humanitarian catastrophe).

I think it is pretty clear I am ardently pro-choice. My approach to abortion is that it’s like bankruptcy or heart surgery. It’s not good if you need it, but if you need it, you really need it.

To be fair, it is obvious to most people paying attention for five seconds to American politics that overturning Roe v. Wade would make a bad situation worse.

In fact, in the past, the Supreme Court had a policy called stare decisis, the idea that precedent must be respected. This policy was adopted in part to prevent social instability.

Suffice to say, this decision will do the precise opposite.

But apparently some people are determined to ignore this reality.

History of Attitudes toward Abortion

Keep in mind that before Roe v. Wade, abortion did not inspire this level of emotion in the American people as a whole, except maybe for some Catholics, whose theology explicitly prohibits abortion.

In fact, people had a mostly blasé attitude toward abortion for most of human history. It was regarded as just another medical procedure, nothing more than that. Keep in mind that in this context, attitudes toward abortion did not correlate well with respect for women. One could be what we would call pro-choice and still be viciously misogynistic.

Of course, objections to abortion were frequently tied to the goal of controlling women’s bodies.

Case in point: Sir Matthew Hale, a highly influential English jurist who helped enshrine the idea in English common law that because a wife was legally de facto owned by her husband, it was OK if he raped her.

Yes, this lovely gentleman helped preserve martial rape as acceptable in English common law.

He also considered abortion murder and felt that women needed to be brutally controlled.

So what we would call the pro-life movement has had misogyny as part of its core motivation in practice for quite some time.

In case you were wondering, Justice Alito cites Sir Matthew Hale in his opinion that abortion is murder.

In the United States, abortion was most frequently objected to on the grounds that its practitioners did not know what they were doing (which was technically true, but the same could be said of all nineteenth-century medicine) and that the White birth rate was declining (a claim that got started in the 1880s).

Before Roe v. Wade, access to abortion depended heavily on where you lived and who you were. The back-alley abortions were most often inflicted on women who were both desperate and marginalized.

All of this changed after Roe v. Wade. The religious right needed fuel when overt bigotry against people of color and women was no longer acceptable, so they made an alliance with anti-abortion Catholics (along with other anti-choice Americans) in one of the most consequential acts of political opportunism in American history.

Political Polarization Will Only Get Worse Thanks to This Ruling

Ever since Roe v. Wade, abortion as an issue has been tied with other highly sensitive topics by the religious right, such as attitudes toward sex and sexual assault, understanding of birth control, women’s rights/standing in society, issues around privacy, and the treatment of LGBT people. In addition, Roe v. Wade upholds rights to privacy, the same foundation as the rulings that support interracial marriage and the right to birth control.

To put it another way, abortion has become a proxy issue for social attitudes on highly delicate topics.

Painful as the status quo was regarding abortion in the United States between 1972 and 2022, it was a status quo that kept tempers under control and, crucially, abortion accessible for millions of women where it otherwise would not be.

Now? Millions of women are about to lose what little access to reproductive health care they had, and with red states passing laws to prohibit women from seeking reproductive health care out of state and blue states responding to these laws, the legal fights on this emotionally charged issue will be quite ugly.

I would tell people who honestly think this will cool things down to take a look at what red states are doing and what blue states are doing (in the case of the blue states, out of ugly necessity) in response.

What happens when a woman goes across state boundaries from either Indiana, Missouri, or Wisconsin to receive reproductive health care in Illinois? When state authorities from any of the three mentioned red states demand an extradition from Illinois authorities, what do you think will happen? Does anyone honestly think that there will be rational calls for compromise or de-escalation when everyone is already quite angry? Especially the red states? What about blue counties in red states who refuse to enforce this law and start fights with red state governments? Or red counties in blue states that attempt to aid red states?

Keep in mind this is not the only issue where different legal regimes are going to clash with each other. We are seeing similar situations with guns, immigration and environmental law, trade rules, and education.

Red and blue America are not just diverging culturally and socially, their very legal systems are diverging as well. The last time there were functionally two oppositional legal systems in the United States was right before the Civil War around slavery.

Keep in mind I am talking about parallel legal systems and fundamental political questions, not moral equivalents. American slavery was a systematic horror unparalleled in both its cruelty and long-term consequences, except for other systems of New World slavery in the Caribbean and Brazil.

The 1858 Dred Scott decision that was supposed to solve the question of slavery once and for all only fed more fuel to the most devastating conflict in US history.

Does anyone honestly think that the federal government under Republican control passing a federal abortion ban combined with the Supreme Court upholding it would cool things down?

We are headed down a fairly dark road that I don’t think anyone is prepared for.

I honestly don’t know how things get better from here.