Pro-abortion Historians’ Brief Is Wrong

Anti-abortion and pro-abortion rights activists protest outside the Supreme Court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
(Jonathan Ernst)

Our legal and journalistic cultures being what they have been for the last few decades, opponents of Roe v. Wade have had an uphill climb in getting our arguments across. One set of criticisms of Roe has been an exception to this rule. The ideas that Roe has blocked the possibility of compromise on abortion, poisoned our politics, and deformed the judicial-confirmation process have become something close to conventional wisdom — probably because they strike most people as obviously true. Even Justice Ruth Bader Ginsburg partly agreed.

But because these truths are inconvenient to the pro-choice side of the case now before the Supreme Court, Dobbs v. Jackson Women’s Health Organization, a group of historians has filed a legal brief saying that this common view of the political history of the last few decades is “inaccurate.” They succeed only in refuting a straw-man version of the argument.

The imaginary argument that the brief refutes goes like this: A compromise on abortion acceptable to both sides of the debate would have been easy to achieve; when Roe came down, the politics of abortion immediately became bitterly polarized on partisan lines; and everyone would quickly come together in a spirit of mutual cooperation if only Roe were overruled. Mississippi is, of course, advancing nothing like this argument. Nobody is.

Left untouched by the brief are these points:

ONE: Roe and its companion case Doe v. Bolton explicitly struck down Georgia’s attempt at a compromise on abortion. Subsequent court decisions struck down other compromise laws that had some support even from people who consider themselves pro-choice. In the current case, the pro-choice side is trying to strike down a law that a) allows abortion at the times the vast majority of abortions take place and b) has strong majority support in polling, again including support from many people who consider themselves pro-choice.

TWO: The Court’s nationalization of the abortion debate, its imposition of an extreme version of one side’s preferences on the issue, and its lack of any convincing constitutional argument for its action all contributed to a slow process of polarization in American politics. The historians’ brief argues that the polarization of the parties, e.g., based on religion, is what caused judicial confirmations to grow more contentious; it is studiously incurious about whether there might be a relation between that polarization and the Court’s decisions. Religious polarization just happened.

THREE: Roe began a process that culminated in abortion’s becoming the top issue in every Supreme Court nomination debate and a lot of lower-court nomination debates as well.

All of this took time. It took time for elected Democrats to become uniformly supportive of abortion; it took time for groups with ancestral ties to the Democratic Party to decide that the newly abortion-enthusiastic party no longer fit with them; it took time for the mirror-image processes to happen among Republicans; it took time for first one group of voters and then another to realize that the stakes of judicial confirmations had changed; it took time for norms about judicial confirmations to erode. The brief repeatedly attacks Mississippi for saying that the Court’s abortion jurisprudence “poisoned the national discourse” but doesn’t even register an elementary feature of the metaphor: As Carrie Severino points out, some poisons take a while to work their harm.

During the last three decades, several presidential nominees have explicitly pledged that their judicial picks would vote in a particular way in abortion cases. They haven’t made similar pledges about the death penalty or affirmative action. Abortion is the issue that has warped judicial politics. The historians would have you believe that the fights over the nominations of Robert Bork, Samuel Alito, and Brett Kavanaugh, among others, would have been just as intense if the Supreme Court had never occupied the field of abortion policy. If they really believe this themselves, they’re just about the only people who do.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.