The Abortion War Will Soon Rip America in Two

Supreme Court Justice Anthony Kennedy upheld Roe v. Wade. Then-candidate Donald Trump pledged to only nominate judges to the high court who would overturn Roe v. Wade. These two facts have put the American judiciary on a collision course with the American electorate. Whatever the Supreme Court does next on abortion, our nation will become even more divided than it is today. 

Why? Because the socially conservative component of Trump’s political base now expects Roe to be erased. As conservative New York Times columnist Ross Douthat explained last week, “the conservative legal movement’s political promise [has long been that] judges formed by its philosophy and principles would necessarily vote to overturn the post-1973 abortion regime. … Without that promise the current Republican coalition would not exist.” 

Noting that abortion opponents previously felt betrayed when three Republican justices, including Kennedy, helped preserve Roe in the 1992 Planned Parenthood v. Casey case, Douthat argues that a repeat performance would spark “rebellions and disillusionment [that] will divide the right’s legal coalition, and pro-life voters will never trust the legal establishment’s promises again.” 

Douthat’s column reads like a shot across the bow of Chief Justice John Roberts and Supreme Court nominee Brett Kavanaugh, the two conservatives most likely to deny anti-abortion activists the sweeping ruling they crave. He seems to want them to know that if they think following stare decisis, the principle of deference to past judicial precedent, would preserve the credibility of the court and the stability of our democracy, think again. By keeping the Roe precedent, even if they restrain it to some degree, they will cause massive political upheaval and shatter the Republican Party. 

Douthat mentions in passing that the overturning of Roe would spark a “wider culture war,” but postpones any exploration of that for perhaps a column “in the months to come.” That may be a long wait. As an ardent opponent of abortion, Douthat may be loath to spell out what the end of Roe would mean for America. But the political ramifications of overturning may weigh on Roberts and Kavanaugh just as heavily as upholding. 
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