Roe v. Wade overturned in 1992

[Ricardolindo]

Let's say Justice Anthony Kennedy doesn't change his mind and votes to overturn Roe v. Wade in 1992. What is the aftermath? How would this affect the 1992 elections?

 

[Charles EP M.]

Well if the handy poll graphic on wikipedia's accurate, support for Roe VS Wade reached its highest level around that time - almost certainly because it could've almost been banned. This is a boon for the Clinton campaign and a problem for Bush (already having to also battle Perot, who OTL clearly undercut Bush's result), so Billy still wins.

The other aftermath is depending on what government a state has, that state's going to either keep abortion or end it. That'll get grim.

 

[Ricardolindo]

Well if the handy poll graphic on wikipedia's accurate, support for Roe VS Wade reached its highest level around that time - almost certainly because it could've almost been banned. This is a boon for the Clinton campaign and a problem for Bush (already having to also battle Perot, who OTL clearly undercut Bush's result), so Billy still wins.

The other aftermath is depending on what government a state has, that state's going to either keep abortion or end it. That'll get grim.

This has been said a lot of times, but Perot took from Bush and Clinton equally. However, I do think this would make many pro-choice Republicans vote for Clinton or Perot.
It could also affect the Senate elections. In our timeline, D'Amato narrowly defeated Abrams.
BTW, would it be possible for the Supreme Court to decide that abortion in cases of danger to the woman's life, rape and incest was still constitutionally protected?

 

[rosa]

Well if the handy poll graphic on wikipedia's accurate, support for Roe VS Wade reached its highest level around that time - almost certainly because it could've almost been banned. This is a boon for the Clinton campaign and a problem for Bush (already having to also battle Perot, who OTL clearly undercut Bush's result), so Billy still wins.

The other aftermath is depending on what government a state has, that state's going to either keep abortion or end it. That'll get grim.

Both Clinton and Perot could perform better but I think Clinton wins by more

 

[History Learner]

Abortion becomes a state issue, with more Liberal states legalizing the practice in their own states while more Conservative states clamp down on it. On the long term, this individualist approach would probably gradually remove it as a national issue. The demographic effects could be interesting, however; the majority of abortions-up to 2006 at least-were among White women. I don't know if a State by State breakdown is available, but I would hazard to speculate that Florida, Georgia, North Carolina and perhaps even Virginia would have remained GOP or GOP leaning states to the present.

 

[Japhy]

Abortion becomes a state issue, with more Liberal states legalizing the practice in their own states while more Conservative states clamp down on it. On the long term, this individualist approach would probably gradually remove it as a national issue.

I think that's a very simplistic and conservative take on the issue. And it's not as though the Anti-Women's Rights crowd would ever be satisfied by not exerting that control in all states.

 

[History Learner]

I think that's a very simplistic and conservative take on the issue. And it's not as though the Anti-Women's Rights crowd would ever be satisfied by not exerting that control in all states.

The ruling Kennedy was initially leaning towards would have, in essence, kicked the issue firmly to the States. Efforts at Congressional level legislation or even an Amendment on the Constitution might continue, but a simple count of the States and Senate Filibuster means those efforts will go nowhere. Given that, the only real metric that would matter and have an influence on policy would've have been feelings in the States themselves; I don't see a Pro-Life majority happening New York anymore than I see a Pro-Choice upsurge in Texas. Evangelicals in Mississippi want to ban it in New York, but without living in New York and thus electing legislatures/judges/voting in referendums, I don't see any impact of that.

 

[Charles EP M.]

I can't see it becoming a non-national issue after this. In every state, you would have the possibility that it would be legalised/banned with any sufficiently large new government; the fight wouldn't end there and each state going either way will be watched. The parties would either have a unified policy or have big divides on the issue, and if it's the latter that makes it an issue for Democrat or Republicans nationwide if the Pro-Choice/Pro-Life faction is getting their candidate or cabinet member in.

And that's before people go to other states to have abortions and that becomes a running issue.

 

[Jackson Lennock]

Funny - I was thinking of posting a thread like this for the past week or so but opted not to!

One question is - does the overturning even last? Assuming a Democratic victory in 1992, Byron White (who would vote to overturn) will retire and be replaced by somebody pro-Choice. O'Connor, Souter, and perhaps Kennedy could end up part of a majority that brings back some abortion protections, albeit on different grounds. Ginsburg seems like the best nominee for the Court post-Roe if the Democratic incumbent is trying to play to women's groups after Roe gets overturned.

Ginsburg OTL thought Roe was a poorly reasoned opinion; and also thought Equal Protection was a better approach than Substantive Due Process. O'Connor in Lawrence v. Texas concurred on Equal Protection grounds, so maybe something along those lines comes into play here.

BTW, would it be possible for the Supreme Court to decide that abortion in cases of danger to the woman's life, rape and incest was still constitutionally protected?

That seems like something which could plausibly happen with a new pro-choice majority put on the court after White retires.




The Court will still have to deal with abortion cases.

Republicans at the national level will try to regulate abortion, and it'd probably become a commerce clause question at that point. The National Ban on partial-birth abortions was upheld in 2007's Gonzales v Carhart, but one of the concurrences explicitly said that none of the majority's reasoning addressed whether it was within the federal government's Commerce Power. You could see an abortion case used as the vehicle to limit the Federal ability to regulate medical care... striking down a federal law. Alternatively, Liberals might try to do the opposite thing and establish Roe again by statute, which also would raise commerce issues.

States will try to ban women from going to other states to seek abortions. There's a Constitutional Right to Travel, and that's be a big legal headache.

Both Clinton and Perot could perform better but I think Clinton wins by more

I'm not sure about this. If Democrats are making a bigger deal out of abortion this election, they might drive off more Catholic Democrats. Bob Casey Democrats (i.e., socially conservative economic progressives) were still a thing then ... and Pennsylvania's Democratic Governor Bob Casey is going to become a villain in large chunks of the party which can cause a wedge. OTL he was already snubbed by the party at the 92 Convention and would have primaried Clinton in 96 if not for having cancer.

 

[Ricardolindo]

Funny - I was thinking of posting a thread like this for the past week or so but opted not to!

One question is - does the overturning even last? Assuming a Democratic victory in 1992, Byron White (who would vote to overturn) will retire and be replaced by somebody pro-Choice. O'Connor, Souter, and perhaps Kennedy could end up part of a majority that brings back some abortion protections, albeit on different grounds. Ginsburg seems like the best nominee for the Court post-Roe if the Democratic incumbent is trying to play to women's groups after Roe gets overturned.

Ginsburg OTL thought Roe was a poorly reasoned opinion; and also thought Equal Protection was a better approach than Substantive Due Process. O'Connor in Lawrence v. Texas concurred on Equal Protection grounds, so maybe something along those lines comes into play here.



That seems like something which could plausibly happen with a new pro-choice majority put on the court after White retires.




The Court will still have to deal with abortion cases.

Republicans at the national level will try to regulate abortion, and it'd probably become a commerce clause question at that point. The National Ban on partial-birth abortions was upheld in 2007's Gonzales v Carhart, but one of the concurrences explicitly said that none of the majority's reasoning addressed whether it was within the federal government's Commerce Power. You could see an abortion case used as the vehicle to limit the Federal ability to regulate medical care... striking down a federal law. Alternatively, Liberals might try to do the opposite thing and establish Roe again by statute, which also would raise commerce issues.

States will try to ban women from going to other states to seek abortions. There's a Constitutional Right to Travel, and that's be a big legal headache.



I'm not sure about this. If Democrats are making a bigger deal out of abortion this election, they might drive off more Catholic Democrats. Bob Casey Democrats (i.e., socially conservative economic progressives) were still a thing then ... and Pennsylvania's Democratic Governor Bob Casey is going to become a villain in large chunks of the party which can cause a wedge. OTL he was already snubbed by the party at the 92 Convention and would have primaried Clinton in 96 if not for having cancer.

O'Connor did not want to completely overturn Roe as she thought it was too entrenched but I don't think she would support bringing it back once it was overturned.

 

[Jackson Lennock]

O'Connor did not want to completely overturn Roe as she thought it was too entrenched but I don't think she would support bringing it back once it was overturned.

It depends what bringing it back means.

I think she'd be welcome to an Equal Protection challenge on something like spousal consent laws. The right to abortion to protect the life or health of the mother in an early trimester (based on the old doctrine quickening?) also seems like a possibility. It would be a much more deferential standard than even Casey provided, but seems like it could get 5 votes.

 

[Ricardolindo]

Funny - I was thinking of posting a thread like this for the past week or so but opted not to!

I had been meaning to post such a thread for a while.

That seems like something which could plausibly happen with a new pro-choice majority put on the court after White retires.

Could Kennedy have made it a condition for oveturning Roe, though? Would Rehnquist, White, Scalia and Thomas have been willing to accept this in order to overturn abortion on demand being constitutionally protected?

 

[Elektronaut]

If anti-abortion people believe what they say they firmly believe - that life begins at conception and all abortion at any stage is murder - then there's absolutely no way that it just ends up being left as a state issue.

The years after Casey also marked the high-point of the organised religious right's power and influence in the GOP. And that's OTL, without the emboldening effect here. So yeah, I think 'it's state issue' would last a few months.

 

[Ricardolindo]

If anti-abortion people believe what they say they firmly believe - that life begins at conception and all abortion at any stage is murder - then there's absolutely no way that it just ends up being left as a state issue.

The years after Casey also marked the high-point of the organised religious right's power and influence in the GOP. And that's OTL, without the emboldening effect here. So yeah, I think 'it's state issue' would last a few months.

As @History Learner said, though, there are states where a pro-life majority could never come about regardless of how much pro-lifers in other states may want it.

 

[Elektronaut]

As @History Learner said, though, there are states where a pro-life majority could never come about regardless of how much pro-lifers in other states may want it.

That isn't relevant to the question of what the national positon of the GOP would be in a post-Roe world. There's a lot of things which are firmly-held articles of faith for the national GOP which wouldn't fly on a state-level in the likes of New York.

 

[Jackson Lennock]

If anti-abortion people believe what they say they firmly believe - that life begins at conception and all abortion at any stage is murder - then there's absolutely no way that it just ends up being left as a state issue.

The years after Casey also marked the high-point of the organised religious right's power and influence in the GOP. And that's OTL, without the emboldening effect here. So yeah, I think 'it's state issue' would last a few months.

The Partial Birth Abortion Act of 2003 passed 64-36, and that's just the banning of a specific abortion procedure. I'm skeptical that anything more impactful than a third-trimester ban could get 60 votes in the Senate.

Such a ban would immediately be challenged in court, which would lead to an awkward situation because pro-choice advocates (who tend to be liberal) would probably have to rely on the CONSERVATIVE Justices via some kind of states' rights argument that the ability to ban abortions is beyond the Federal interstate commerce power.

Gonzales v Carhart (2007) was a 5-4 where two of the Justices - Thomas and Scalia - concurred saying that if there were a commerce clause challenge to the law, they might have ruled differently. Kennedy didn't join that concurrence though, but he did join the majority in the Obamacare case that said the Commerce Clause wouldn't allow for an individual mandate (likewise, Alito and Roberts didn't join that concurrence either, but were in the Obamacare majority on the Commerce issue). Kennedy and Scalia were in the majority in Raich (voting to uphold federal regulatory power) but I think this case is different.
So... Scalia, Thomas, Rehnquist, O'Connor, and Kennedy could use an abortion case as an opportunity to chip away at Federal regulatory power.


Souter, Stevens, the replacements for Blackmun and White ... they probably vote to strike down a Federal ban for different reasons relating to it being a fundamental right or Equal protection.

There could also just be a small governing plurality (O'Connor and Kennedy?) like in the Obamacare case where every part of it is joined by 5 Justices, but different parts have different 5 Justice majorities.

 

[Vidal]

I'm not sure about this. If Democrats are making a bigger deal out of abortion this election, they might drive off more Catholic Democrats. Bob Casey Democrats (i.e., socially conservative economic progressives) were still a thing then ... and Pennsylvania's Democratic Governor Bob Casey is going to become a villain in large chunks of the party which can cause a wedge. OTL he was already snubbed by the party at the 92 Convention and would have primaried Clinton in 96 if not for having cancer.

I don't know that they have to in order to reap the political benefits. And while I agree that there were plenty of Catholic Democrats, a fair number held the point of view of Geraldine Ferraro (and later Tim Kaine): I oppose it, but I don't want to ban it. The Democrats would likely center the issue a bit more than they did, but I think a campaign run by Carville and crew will still be centered on the economy with the abortion issue being used to motivate the base turnout.

Point taken, though, about Bob Casey. Like OTL, he will be blocked from speaking at the convention. Having just won at the Supreme Court, though, I feel he'll be less offended than he was IOTL.

Also, forcing George Bush to discuss the issue at length is going to alienate the far-right or the moderates. If he leaves any doubt about his support for the Court's ruling, he'll hurt himself with conservative voters. I think Poppy has a harder line to walk than Clinton will.

I'd also note that there are three Senate races that would definitely be affected here:
1) New York -- Yes, Abrams almost certainly wins a general election against D'Amato ITTL, but also, he may lose the primary -- it's hard to say. Ferraro was more centrist on abortion than Abrams was he and hit her on the choice issue, but I also think identity matters and could see voters moving towards her. Whether its Abrams or Ferraro, it doesn't matter. D'Amato is toast if Roe is gone.

2) Pennsylvania -- Lynn Yeakel was the Democratic candidate here. I think she'd win ITTL, defeating Arlen Specter.

3) New Hampshire -- New Hampshire is a weird state politically and civil liberties have long been a big issue there. I could definitely see an overturn of Roe being enough for Judd Gregg to lose the Senate seat.

 

[Ricardolindo]

I don't know that they have to in order to reap the political benefits. And while I agree that there were plenty of Catholic Democrats, a fair number held the point of view of Geraldine Ferraro (and later Tim Kaine): I oppose it, but I don't want to ban it. The Democrats would likely center the issue a bit more than they did, but I think a campaign run by Carville and crew will still be centered on the economy with the abortion issue being used to motivate the base turnout.

Point taken, though, about Bob Casey. Like OTL, he will be blocked from speaking at the convention. Having just won at the Supreme Court, though, I feel he'll be less offended than he was IOTL.

Also, forcing George Bush to discuss the issue at length is going to alienate the far-right or the moderates. If he leaves any doubt about his support for the Court's ruling, he'll hurt himself with conservative voters. I think Poppy has a harder line to walk than Clinton will.

I'd also note that there are three Senate races that would definitely be affected here:
1) New York -- Yes, Abrams almost certainly wins a general election against D'Amato ITTL, but also, he may lose the primary -- it's hard to say. Ferraro was more centrist on abortion than Abrams was he and hit her on the choice issue, but I also think identity matters and could see voters moving towards her. Whether its Abrams or Ferraro, it doesn't matter. D'Amato is toast if Roe is gone.

2) Pennsylvania -- Lynn Yeakel was the Democratic candidate here. I think she'd win ITTL, defeating Arlen Specter.

3) New Hampshire -- New Hampshire is a weird state politically and civil liberties have long been a big issue there. I could definitely see an overturn of Roe being enough for Judd Gregg to lose the Senate seat.

Not so sure about Pennsylvania. Specter was pro-choice.

 

[Elektronaut]

The Partial Birth Abortion Act of 2003 passed 64-36, and that's just the banning of a specific abortion procedure. I'm skeptical that anything more impactful than a third-trimester ban could get 60 votes in the Senate.

Such a ban would immediately be challenged in court, which would lead to an awkward situation because pro-choice advocates (who tend to be liberal) would probably have to rely on the CONSERVATIVE Justices via some kind of states' rights argument that the ability to ban abortions is beyond the Federal interstate commerce power.

Gonzales v Carhart (2007) was a 5-4 where two of the Justices - Thomas and Scalia - concurred saying that if there were a commerce clause challenge to the law, they might have ruled differently. Kennedy didn't join that concurrence though, but he did join the majority in the Obamacare case that said the Commerce Clause wouldn't allow for an individual mandate (likewise, Alito and Roberts didn't join that concurrence either, but were in the Obamacare majority on the Commerce issue). Kennedy and Scalia were in the majority in Raich (voting to uphold federal regulatory power) but I think this case is different.
So... Scalia, Thomas, Rehnquist, O'Connor, and Kennedy could use an abortion case as an opportunity to chip away at Federal regulatory power.


Souter, Stevens, the replacements for Blackmun and White ... they probably vote to strike down a Federal ban for different reasons relating to it being a fundamental right or Equal protection.

There could also just be a small governing plurality (O'Connor and Kennedy?) like in the Obamacare case where every part of it is joined by 5 Justices, but different parts have different 5 Justice majorities.

I didn't actually make any comment on the success of it, but I don't doubt that the national GOP would transition to efforts to restrict abortion nationally post-Roe.

In addition to the things I mentioned, the GOP's political centre of gravity in the nineties firmly became the South. So in addition to the peak of the religious right, you have the dominance of the most anti-abortion region of the country having the lead on creating a post-Roe orthodoxy for the party.

I think you're seriously downplaying the partial-birth ban getting a filibuster-proof Senate majority. Yes, it's the easiest battle to win at a national level, but that Bush managed to get that kind of majority for any kind of action nationally on abortion is still significant. It also, I think, supports what I'm saying on abortion becoming a state issue being a nonsense.

I also think you're straining credulity, btw, if you think, as I think you're suggesting, that the originalist justices would strike down national, GOP Congress-passed abortion legislation. Scalia in particular was absolutely very majoritarian. The fact they took an approach of 'Who knows what Congress can do in this crazy world?' (Oh, I don't know, maybe that's an issue the Supreme Court should be deciding on? ) and upheld the partial-birth act shows exactly where their bread would be buttered when it's Big Gubmint rubbing up against the abortion issue. (Though certainly as long as O'Connor at least is there, anything too restrictive nationally would be a pipe dream. But I don't see the post-millennium GOP bias of the Senate really kicking in under O'Connor's tenure anyhow.)

 

[Jackson Lennock]

I didn't actually make any comment on the success of it, but I don't doubt that the national GOP would transition to efforts to restrict abortion nationally post-Roe.

In addition to the things I mentioned, the GOP's political centre of gravity in the nineties firmly became the South. So in addition to the peak of the religious right, you have the dominance of the most anti-abortion region of the country having the lead on creating a post-Roe orthodoxy for the party.

I think you're seriously downplaying the partial-birth ban getting a filibuster-proof Senate majority. Yes, it's the easiest battle to win at a national level, but that Bush managed to get that kind of majority for any kind of action nationally on abortion is still significant. It also, I think, supports what I'm saying on abortion becoming a state issue being a nonsense.

I also think you're straining credulity, btw, if you think, as I think you're suggesting, that the originalist justices would strike down national, GOP Congress-passed abortion legislation. Scalia in particular was absolutely very majoritarian. The fact they took an approach of 'Who knows what Congress can do in this crazy world?' (Oh, I don't know, maybe that's an issue the Supreme Court should be deciding on? ) and upheld the partial-birth act shows exactly where their bread would be buttered when it's Big Gubmint rubbing up against the abortion issue. (Though certainly as long as O'Connor at least is there, anything too restrictive nationally would be a pipe dream. But I don't see the post-millennium GOP bias of the Senate really kicking in under O'Connor's tenure anyhow.)

Except the concurrence specifically said they weren't touching the abortion issue because it wasn't properly before the court. It's possible that (looking at Gonzales v Raich, the marijuana case) Kennedy and Scalia would rule that it is in Congress's power to do, but (a) marijuana wasn't that distinguishable from court precedent on federal regulation of other commodities like wheat and (b) both were in the camp of striking down the individual mandate in the Obamacare case. Abortion seems more similar than the ACA case than the marijuana case.

Even if Scalia and Kennedy vote to uphold the law, that's two votes. It's likely there'd be seven others voting to strike down such a ban, but without agreement on the rationale why.