The Conservative Legal Movement at the Edge of Schism – Public Discourse

Last month in Public Discourse, Josh Craddock called the question : if Roe v. Wade is overturned, or seriously scaled back by the Supreme Court in June, are we prepared for what comes next? That question has been put to us with even more sharpness in recent weeks in the reaction to the leaked opinion of Justice Alito in the Dobbs case. And what it brings home to us is that the issue raised anew by Craddock will set off deep and perhaps even explosive differences among conservatives on the day after Roe is overturned.

The position long established in conservative jurisprudence is that the issue of abortion is then returned to the political arena in the states. The argument has been that since abortion is nowhere mentioned in the Constitution, it forms no part of the business of the national government. To entrench this view further, the issue is returned to the states because, it is said, we are too divided on whether that nascent being in the womb is truly a human life, which comes rightly under the protection of the law. As one of our leading conservative justices put it, there is no way to determine that as a legal matter . . . the fetus and what others call the unborn child is a human life. That question hinges, he said, on a value judgment made by people in the states on how much value they attach to the offspring in the womb as a human being.

In contrast, it would make a profound difference if the Court says, rather, that the laws would be amply justified in casting their protection about that nascent human life in the womb, for that small being has never been anything less than human from its first moments, and never merely a part of the pregnant woman. If the Court sent the matter back to the political arena in that way, it would also frame the issue for the states in a strikingly different way. It would no longer be a matter of offering value judgments on whether the unborn child is a human being. But at the same time, the ground would be put in place for engaging the powers of the federal government when we find the states withdrawing the protections of the law from a whole class of human beings.

via www.thepublicdiscourse.com

My sense is that Roe will be overruled, the question will go back to the states, and that states will take different positions on abortion, from California celebratory approach to that of some states that outright ban it, possibly with some narrow exceptions. Catholics and some others will then try to overturn these rules before those pro-abortion state courts and legislatures, but I predict they will have little success.

Things get more interesting in guessing how much of a cultural impact these different legal regimes will have. I don’t see them as making a big difference, but I might be wrong. There may be some states such as Arizona that might start out restricting abortion fairly strictly but then moving toward allowing it as their generations turn over. There will still be a lot of electronic ink spilled on the questions but it will no longer be a great national issue, though it will seem so to some within the respective media bubbles.

If this remains the cultural case for a while, such as 50 years, you might get to see noticeably different cultures develop in different states that at bottom have profoundly different attitudes toward life, for want of a better term, and reproduction. California might have its increasingly louche culture while Idaho, say, would be less so, at least outside of Boise. There will doubtless be unintended and unanticipatable consequences as well.