“Glendon? Mary Ann Glendon? Where Did You Get This From, a Morgue?”

Megan McArdle reaches into her nostalgia file for a 90s classic: “there is only opposition to abortion rights because of Roe v. Wade.”

What do I mean by that? Well, consider the Judicial Wars. Of course, different people will have different dates for the start of that long conflict, but there’s a plausible argument that it began with the sweeping decision in Roe v. Wade.

Hmm, that seems plausible. All those “Impeach Earl Warren” signs were probably motivated by the Burger Court’s abortion decision. It also seems safe to conclude that LBJ’s attempt to replace Warren was filibustered to death in 1968 because of the Supreme Court’s 1973 decision that bans on pre-viability abortion were unconstitutional. Quite frankly, I am unable to identify any Warren Court decisions that filibustering senators like Strom Thurmond would have found objectionable.

There has been a long-running argument about whether public opinion on abortion would have continued to liberalize after Roe v. Wade, rather than hardening into a remarkably stable equilibrium. I tend to think that it would have, because Roe turned what had been a local political battle into a national one, and thereby galvanized social conservatives in (future) red states who would have otherwise been content not to think much about the issue.

This claim is, in fact, about as clearly wrong as such a counterfactual can be. Social conservatives (not just in) (future) red states were plenty galvanized by attempts to appeal abortion bans through the political process, so much so that the legalization process was pretty much dead in its tracks by 1973. And even in states were abortion was largely decriminalized, opponents of abortion rights hardly went away — Rockefeller had to veto a bill to re-criminialize abortion that passed the New York assembly. The idea that opposition to Roe was driven by procedural rather than substantive opposition is implausible in theory and supported by no evidence in practice.

I’ll also note that McArdle made exactly the same argument about same-sex marriage litigation; she tastefully omits this here presumably because it turned out to be massively wrong.

But perhaps more importantly, Roe made the issue binary. Most Americans do not believe that abortions should be legal right up until the moment the doctor hands the baby to Mom and says “It’s a girl”;

Fair enough! It does seem that Roe’s alleged holding that abortion cannot be regulated in any way at any stage of the pregnancy would be highly controversial! Only I happen to have Roe right here:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

So, to summarize, Roe created the opposition to liberal judicial decision that predated it by well over a decade by holding something it didn’t. Hard to see any flaws in that logic! And, needless to say, it’s worse than that:

About a quarter believe that it should be legal under all circumstances, with few-to-no restrictions; another fifth believe that it should be legal under few to none. The middle is mushier:

One extensive battery of survey questions asked since the early 1970s shows that people support abortion when the circumstances of the pregnancy are out of a woman’s control (she has been raped, the life of the mother is at stake), but they oppose it when she can control the circumstances (she is married and doesn’t want more kids, she is not married and doesn’t want to marry the father).

A normal legislative process would have to actually address this complex set of opinions head-on. We’d probably have ended up with some sort of European-style compromise, much less contentious abortion politics, and quite possibly, much less obsession on either side with getting control of the Supreme Court.

What’s amazing about this is that since 1992 the Supreme Court has explicitly permitted this type of “centrist” regulation. It has not made abortion politics any less contentious. I’d also note that even on its own terms it has been a substantive failure. The arbitrary obstacle course that Casey has allowed states to construct around abortion does absolutely nothing to permit “Good Abortions” and prohibit “Bad Abortions” — it just makes it much more difficult for many women less socioeconomically well-situated than McCardle to obtain abortions for any reason. Irrespective of the policy merits, however, McArdle is literally arguing that abortion politics is contentious in the United States because the Supreme Court won’t allow states to pass regulations they’ve been passing for more than two decades because the Supreme Court permitted them.

Also featured here is the old Ross Douthat classic, “why don’t pro-choicers want to be more like Europe, neener-neener.” In the interests of comity, let me say that moving to French abortion policy would be a major improvement! I look forward to McArdle’s next column calling for a repeal of the Hyde Amendment.

But when the Supreme Court exempted abortion from the legislative process, it also exempted political figures — and voters — from having to actually think through what abortion law should look like. The legislative action moved to secondary and tertiary and quaternary issues: spousal and parental notification, health code standards for clinics, whether the federal government should give any funding to organizations that performed abortions, even if the money was tied to some other activity the government wanted to promote.

1)That doesn’t sound like abortion has been “removed from the political process” to me. 2)Leaving aside the fact that it’s a terrible idea on the merits, I would love McArdle to try to explain what regulatory framework currently denied to the states would allow abortions for “good” reasons and not for “bad” reasons. SPOILER: there isn’t one. These “tertiary and quaternary issues” are what centrist abortion regulation is.

The Republicans do indeed, as McArdle goes on to observe, have a serious political problem having caught the healthcare car. But this story about Roe is both wrong and beside the point.