The U.S. Was Democratically Legalizing Abortion. Then Roe Happened and Created a Backlash | Opinion

The leak of a Supreme Court opinion suggesting the court is on the cusp of scrapping Roe v. Wade has unleashed a mostly understandable panic about reproductive rights. But there has also been a mostly misguided uproar about the state of American democracy. From the President's office all the way down, Democrats are decrying the decision to overturn Roe, which enshrines a woman's right to an abortion as a Constitutional one, as a threat to the democratic principles that govern the U.S.

And yet, Roe v. Wade was a terrible decision that did untold damage to American politics—in particular, to a liberalizing trend sweeping the nation that was put to a halt by the Supreme Court's overreach.

Before Roe v. Wade, America was on the same path as other western democratic countries, which were in the process of liberalizing their abortion laws in the 1970s through government legislation rather than Supreme Court ruling. There were setbacks occasionally, as well as heated debates; sometimes first attempts failed. But lessons were learned, publics persuaded and elections contested—and later attempts succeeded.

Legislation making abortion legal in some circumstances was passed by parliaments in the UK and Canada in the late 1960s, and then in France, New Zealand, Italy, and the Netherlands in the late 1970s.

In none of these countries was there a rapid shift to unlimited access with no conditions as happened in the U.S. as a result of the 1973 Supreme Court ruling.

Indeed, before that ruling, a similar process was underway in several U.S. states. Hawaii, New York, Alaska & Washington had already legalized abortion before the Court stepped in, and there is every reason to believe that additional states would have done so at roughly the same pace and in roughly the same order that they would later act on same-sex marriage: liberal coastal states first, then a few surprise entries from northern rural states with historic attachments to personal freedom, followed by much of the rest of the country, with the states of the Old Confederacy bringing up the rear.

The Court's decision short-circuited that crucial democratic process on what is—however much many don't like to hear this—a controversial issue on which reasonable people in good faith disagree.

For liberals, the immediate and mostly unconditional legalization of abortion was a welcome development. But it led to a rapid demobilization of liberal forces and to an even more fateful mobilization of conservative forces who were deeply and legitimately unnerved by the decision.

The consequences were transformative for American politics. An embittered religious Right became the bedrock of an emerging conservative coalition which would take control of the Republican Party within a decade of the Roe decision, with a particularly cruel effect on the management of the early years of the AIDS crisis (remember that pandemic?).

But the real effect was on the Democratic Party, which saw a crucial part of its coalition torn away by this new pro-life mobilization. Without working class Catholics and Evangelicals, the coalition that had brought America a measure of social democracy from the 1930s through the 1960s fell apart.

And for what? To pre-empt a political reform that was well underway and would have been completed by the end of the decade anyway.

Perhaps the best way of illustrating this is by looking at the evolution of public opinion and policy on two similarly divisive issues mixing questions of public prerogative, private rights, and fundamental questions about the value of life: capital punishment and same-sex marriage.

The Court declared the death penalty unconstitutional in 1972, also before there was a broad consensus on the issue, either in America or Europe. And the backlash was severe. America was experiencing a historic spike in crime rates that began in the late 1960s and wouldn't recede until the early 1990s, and the death penalty was reinstated four years later. For decades politicians were terrified of speaking out against it.

Just as with abortion, the U.S. had been on track to gradually phase the death penalty out by popular legislation on a timetable similar to its peer group of countries, and ended up falling behind by decades thanks to a Supreme Court out of touch with the American people.

Now consider same-sex marriage, which became legal in all 50 states following a Supreme Court ruling in 2015. But this was a radically different process than the 1970s rulings on abortion and the death penalty, for the simple reason that by 2015, 37 states had already legalized gay marriage. The law for all intents and purposes had already changed, because public opinion had already changed. It wasn't an easy process by any means. But the backlash (so far, at least) has been minimal compared to the explosive political realignment of the 1970s and 1980s.

The international comparison is instructive here, too: By the time the U.S. Supreme Court acted, legislation on same-sex marriage had already been the law of the land in Canada, France, England, and New Zealand. Within a few years, this would also be the case in Germany, Australia, and Taiwan.

The path that led to marriage equality in the U.S. and Europe would have been the better path for reproductive rights as well. Changing laws by winning elections, winning elections by changing minds, and changing minds by engaging with the public. Roe circumvented that slog by voiding in one fell swoop all restrictions on access to abortion without any of the legislative processes we normally associate with democratic politics.

Whatever satisfaction liberals might have felt from having the High Court grant them in 1973 the outcome they would have otherwise have had to work for over the course of years was short lived; a mobilized conservative base made capturing the judicial branch a top priority over a period of decades, and these conservative rulings on issues like gun control and campaign finance have been impossible to undo by legislation, even when liberals do manage to win enough elections to hold working legislative majorities either at either the state or federal level.

The lesson is, or should be, clear: There is no short cut for the practice of politics in democracy. Real reform happens by mobilizing public opinion, building coalitions, making compromises, drafting legislation, and, crucially, winning elections every once in a while.

Shany Mor is a Research Fellow at the Institute for Liberty and Responsibility at Reichman University and an Adjunct Fellow at the Foundation for Defense of Democracies.

The views in this article are the writer's own.