WI: Planned Parenthood v. Casey overturns Roe v. Wade

[vultan]

According the infallible Wikipedia...

During initial deliberations for Planned Parenthood v. Casey (1992), an initial majority of five Justices (Rehnquist, White, Scalia, Kennedy, and Thomas) were willing to effectively overturn Roe. Kennedy changed his mind after the initial conference,[90] and O'Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of Roe,[91] saying, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."[92] Only Justice Blackmun would have retained Roe entirely and struck down all aspects of the statute at issue in Casey.

So, say those five Justices don't change their minds, for whatever reason, and on June 29, 1992, Roe v. Wade is overturned and laws deciding the legality of abortion are sent back to the states (unless someone thinks something else would result from the law being overturned, and if you do, please tell us what you think the court would prescribe). How does this effect America, both politically and socially, in the short term and long term?

(And I know this is a touchy political issue, but can we try and discuss the topic as objectively as possible so this thread doesn't get moved to Chat?)

 

[fscott]

According the infallible Wikipedia...



So, say those five Justices don't change their minds, for whatever reason, and on June 29, 1992, Roe v. Wade is overturned and laws deciding the legality of abortion are sent back to the states (unless someone thinks something else would result from the law being overturned, and if you do, please tell us what you think the court would prescribe). How does this effect America, both politically and socially, in the short term and long term?

(And I know this is a touchy political issue, but can we try and discuss the topic as objectively as possible so this thread doesn't get moved to Chat?)

At least 1/2 of the population is going to severely pissed. I would not be surprised to see violent protests and the country is even more divided then it is now.

 

[David T]

(1) Immediate effects on the 1992 campaign: It energizes both sides of the debate, but on balance helps Clinton somewhat--not much--by drawing some pro-abortion-rights Republicans away from Bush to either Clinton or Perot. Strong opponents of abortion were pretty much backing Bush in any event--the main Republican defections to Perot were among economic, not social, conservatives. (Note that the socially conservative South was Perot's weakest section.) It could also change the results of some close Seante races, notably in New York, where D'Amato defeated Abrams very narrowly in OTL.

(2) The other question is whether an overruling of *Roe* is itself overruled once White leaves the Court and is replaced by a Clinton appointee, presumably Ginsburg as in OTL. (Of course this assumes that White will retire on schedule, even if he knows his retirement could lead to reinstating *Roe*. I believe he will; he wanted to retire for some time, and as a Democrat--despite his conservative votes on some social issues--he wanted to wait until a Democratic president could appoiint his successor.) As usual, things depend on O'Connor. She did not want to scrap *Roe* entirely, believing that its core holding had become too well-established to overturn; but I'm not sure it follows that she will vote to reinstate it once it is overruled.

 

[vultan]

(1) Immediate effects on the 1992 campaign: It energizes both sides of the debate, but on balance helps Clinton somewhat--not much--by drawing some pro-abortion-rights Republicans away from Bush to either Clinton or Perot. Strong opponents of abortion were pretty much backing Bush in any event--the main Republican defections to Perot were among economic, not social, conservatives. (Note that the socially conservative South was Perot's weakest section.) It could also change the results of some close Seante races, notably in New York, where D'Amato defeated Abrams very narrowly in OTL.

Ah, but if abortion is a much bigger issue in the 1992 election, wouldn't it hurt the Democrats - and by extension, the Clinton campaign - in the South (potentially costing him Georgia, Louisiana, Kentucky, and Tennessee)? And IOTL Clinton already swept the Northeast, the Pacific Coast, and the liberal parts of the Midwest, so I don't see much room for improvement on his part from an electoral college standpoint.

 

[Plumber]

Ah, but if abortion is a much bigger issue in the 1992 election, wouldn't it hurt the Democrats - and by extension, the Clinton campaign -- in the South (potentially costing him Georgia, Louisiana, Kentucky, and Tennessee). And IOTL Clinton already swept the Northeast, the Pacific Coast, and the liberal parts of the Midwest, so I don't see much room for improvement on his part from an electoral college standpoint.

Abortion acts as a GOTV machine for the religious right. If it gets struck down, the shoe will suddenly be on the other foot. This will do nothing but drive pro-choice voters out of the woodwork, and Perot will probably lose many voters to Clinton. 1992 will be a lot more the Culture War election that Pat Buchanan wanted.

Kennedy is likely to regret his role here, and will move to the left, similar to how he did after Bush v. Gore. O'Connor will probably become a second Blackmun, pushed to the left from the right due to abortion. Stevens and Souter will go through their moves left earlier and with more gusto.

Rehnquist, Scalia, and Thomas are going to be over the moon about getting rid of Roe. But White is still going to retire, and his replacement is going to be the most intense Senate hearing we've seen in 20 years. Something more radical than Casey will end up happening very soon, so the extreme anti-choice faction will only have a few years of victory. Americans, whether they call themselves pro-life or pro-choice, have never seriously supported the repeal of Roe, and that occurring could serve to be an overreach on the part of the religious right. The 1990s are going to have a lot more abortion controversy on both sides of the aisle.

Pretty easy to see why Kennedy dodged that landmine.

 

[thekingsguard]

Wouldn't this case have only turned over abortion to the states, not outlawed it entirely? Honestly, I don't see that causing much of a fuss for most people, and if it does, I imagine it would be directed toward the state government.

 

[Andrew T]

Wouldn't this case have only turned over abortion to the states, not outlawed it entirely? Honestly, I don't see that causing much of a fuss for most people, and if it does, I imagine it would be directed toward the state government.

"Turning it over to the states" means de facto banning abortion in 25+ states. Yes, the pro-choice forces would be energized.

 

[Rstone4]

What many forget about Roe V Wade is that it OUTLAWS late term abortion except in cases of life and death. If it is overturned many blue states will re-legalize such things as part of a "pro-choice" support bloc demand list.

This will give the "pro-life" bloc lots of reason to fight.

The Red state will impose stricter abortion rules, some to the point of nearly full outlaw which will add to the fight. This will fuel the fires and money flows of politics rather than being a suppressant.

 

[vultan]

Personally, I think Clinton was the one who dodged the bullet here, because there would have been a LOT of room for him to fuck up.

Say he takes the probable party line and condemns the Court's decision. If he does so, he alienates a lot of voters in the South, West, and rural Midwest. And let's not forget that the the Casey in Planned Parenthood v. Casey was Bob Casey, the pro-life Democratic Governor of Pennsylvania at the time. The one who was denied a speaking slot at the DNC in 1992 because of his pro-life positions. IOTL, the Democrats were fortunate that abortion wasn't a big issue in this presidential election, but should Clinton severely alienate Casey and his constituency he risks putting Pennsylvania into play.

But say he says something along the lines of "while I'm personally pro-choice, I believe that Roe v. Wade came to the right decision in the wrong manner", tacitly agreeing with Planned Parenthood v. Casey. If he does so, he alienates a lot of liberal voters in the Northeast and Pacific Coast.

 

[Francisco Cojuanco]

"Turning it over to the states" means de facto banning abortion in 25+ states. Yes, the pro-choice forces would be energized.

Of course they would. But you would likely see less of the partizanization of abortion that occured OTL. The culture wars will still be intense, but it will take an entirely different form. What people fail to realize often is that before the 1990s, your stance on abortion was more predicted by where you went to church on Sunday than what party you belonged to. Now Clinton and the New Democrats changed that somewhat, but Kennedy going with his initial gut reaction on Casey means that there will be a counterpressure to partisanizing the issue.

I do agree, however, that you've pretty much eliminated the religious right as a reliable GOP voting bloc, though. The reaction will be, "why should we care who the President is if the issues we care about will be decided at the state level?"

I do agree with Vultan, in that Clinton will have little room to maneuver on the issue in the short term. All bets are off on who gets into the White House. Finding a stance that won't alienate significant numbers of potential Clinton voters will be like trying to get a camel through the Eye of the Needle.

 

[Paul V McNutt]

My first TL pm DW covered this topic. I had Lewis Powell in 1982 and Robert Bork confirmed by the Republican Senate to replace him. Rehnquist, White, Bork, Scalia and Thomas would sign the opinion overturning Roe vs Wade. I think the energized Pro Choice forces would help Clinton. I thought no state would completely ban abortion but there would be new restrictions. I thought that O Conner and Souter would sign a concurring opinion that upheld the Pennsylvania restriction but supported Roe vs Wade. Stevens and Blackmun would dissent.

 

[vultan]

My first TL pm DW covered this topic. I had Lewis Powell in 1982 and Robert Bork confirmed by the Republican Senate to replace him. Rehnquist, White, Bork, Scalia and Thomas would sign the opinion overturning Roe vs Wade. I think the energized Pro Choice forces would help Clinton. I thought no state would completely ban abortion but there would be new restrictions. I thought that O Conner and Souter would sign a concurring opinion that upheld the Pennsylvania restriction but supported Roe vs Wade. Stevens and Blackmun would dissent.

Well, we're trying for a later POD than that, one in 1992.

 

[Pesterfield]

Recently we've seen anti-abortion laws focusing also on contraceptives, especially with the idea life begins at conception.

If Roe v. Wade is defeated will the Republicans and Religious Right turn to fighting contraceptives even harder?

About the Supreme Court reversing and legalizing it again, isn't the Court pretty reluctant to change its mind on things? Of course here they already have once, and on a relatively recent case too.

 

[Francisco Cojuanco]

Recently we've seen anti-abortion laws focusing also on contraceptives, especially with the idea life begins at conception.

If Roe v. Wade is defeated will the Republicans and Religious Right turn to fighting contraceptives even harder?

About the Supreme Court reversing and legalizing it again, isn't the Court pretty reluctant to change its mind on things? Of course here they already have once, and on a relatively recent case too.

The Life at Conception movement pretty much focuses on surgical abortion in early trimesters, and to some extent the morning-after-pill. Furthermore, they're not going to go after IUDs or the Pill, except maybe some Catholics (this is discounting the usual safety concerns about contraceptives as pharmaceuticals like any other, i.e. the NuvaRing liability cases). You have to understand that until about two years ago, there was a sort of truce on contraception - the pro-lifers don't go to town on contraceptives, in exchange for the fact that they're not forced to pay for them with after-tax dollars.

I do think there will be social pressure to some extent on ABC though, but that's hardly the province of lawmakers or jurists.

 

[SlideAway]

One factor people seem to be ignoring that in this situation, Clinton and the Democrats may very well seek a federal legislative solution to the abortion issue. Overturning Roe v. Wade wouldn't have banned abortion, but would have asserted that access to abortion was a constitutional right.

In this situation, you'd see major - and very divisive - efforts to enact legislation codifying Roe v. Wade's provisions into federal law, similar to the Freedom of Choice Act, which was proposed throughout the 1990s. But while this would have polled well initially and would have counted on support from the then not-inconsiderable number of pro-choice Republicans in Congress, it would have proven extremely divisive with Southern Democrats.

 

[vultan]

One factor people seem to be ignoring that in this situation, Clinton and the Democrats may very well seek a federal legislative solution to the abortion issue. Overturning Roe v. Wade wouldn't have banned abortion, but would have asserted that access to abortion was a constitutional right.

In this situation, you'd see major - and very divisive - efforts to enact legislation codifying Roe v. Wade's provisions into federal law, similar to the Freedom of Choice Act, which was proposed throughout the 1990s. But while this would have polled well initially and would have counted on support from the then not-inconsiderable number of pro-choice Republicans in Congress, it would have proven extremely divisive with Southern Democrats.

Again, assuming Clinton even makes it to the White House in this scenario, which is a dicey proposition, IMO.

 

[Francisco Cojuanco]

Again, assuming Clinton even makes it to the White House in this scenario, which is a dicey proposition, IMO.

Right. I really can't see him formulating a response to the case that won't alienate significant portions of potential voters.

 

[V-J]

Right. I really can't see him formulating a response to the case that won't alienate significant portions of potential voters.

I think you're engaging in more than a bit of wishful thinking if you think that Bubba 'Safe, legal, and rare' Bill Clinton can't formulate a serious politic response to this.

 

[Alratan]

I do wonder what this will do to the legitimacy of the Supreme Court amongst Democrats.

 

[Just a Rube]

Right. I really can't see him formulating a response to the case that won't alienate significant portions of potential voters.

He'd certainly be able to do a better job of reacting than Bush the Elder would.

Bill Clinton is, regardless of what else you think about him, an excellent campaigner and politician. Furthermore, he's just been handed an example of the Republicans overreaching (especially as the various conservative state legislatures race to implement various abortion bans/restrictions). And he still has the advantage of a bad economy to push him over Bush.

That said, abortion certainly becomes even more of a political football than it is now. As said, already existing laws will render it effectively illegal overnight in many states. Expect attempts to expand those restrictions. The Republican wave of 1994 probably still happens (it was mainly due to a geographic realignment that was already underway), but expect social issues to be even more critical to the Gingrich Congress.