The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Dobbs and Bruen were in tension. In Dobbs, the conservatives said that the people should decide the abortion question, while the progressives said the courts should decide the abortion question. In Bruen, the conservatives said the courts should decide the gun question, while the progressives said the people should decide the gun question. As Justice Sutton asks us, who should decide? Deep down, I hoped that Justice Breyer would be consistent on both questions: let the people decide on guns and on abortion. Such a vote pairing would have been a momentous capstone for his democratic (lowercase "d") philosophy. But, instead Breyer followed his Democratic (capital "D") philosophy. Breyer was so intent on saving Roe that he could not practice what he preaches: making our democracy work.
In the wake of Dobbs, we are already seeing the democratic process at work. And critically, legislatures in red states are forced to confront issues they simply never had to decide before. The absence of Roe is requiring elected representatives to cast difficult votes on abortion. The New York Times distills the process with the headline: "With Roe Gone, Republicans Quarrel Over How Far to Push Abortion Bans." Read through the article. At every juncture, I see government in action.
Abortion opponents, especially in conservative states, had hoped to swiftly pass a new wave of restrictions after Roe v. Wade was overturned. But so far, most Republican lawmakers have moved cautiously or done nothing at all, even in statehouses where they hold overwhelming majorities. A debate playing out in Indiana this week is showing why. Though Republican legislators support the broad idea of restricting abortion, they have clashing views on how far to go. Should there be an outright ban? If so, should there be exceptions for rape and incest? And what if a woman's health is threatened by a pregnancy but doctors do not believe she will die?
One member of the Indiana Senate explained there was never any need to consider these questions before. After all, the "judges of wisdom" "called the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." But now, three-hundred million Americans, rather than three lawyers, can discern their own wisdom.
"Those are all questions that are really difficult," said State Senator Rodric Bray, an Indiana Republican whose caucus, which has long worked to limit abortions, has divided over a bill that would ban abortion with some exceptions. Before Roe was overturned this year, Mr. Bray said, lawmakers had not "spent enough time on those issues, because you knew it was an issue you didn't have to really get into the granular level in. But we're now there, and we're recognizing that this is pretty hard work."
To quote George Washington in Hamilton, "Ah, winning was easy, young man, governing's harder." Yes, indeed, legislating is "pretty hard work." Reversing Roe gave that task back to the legislature. Indeed, I see a parallel with West Virginia v. EPA. The major question doctrine restores the legislative issue to the Congress. Writing bills about abortion, and climate change is "pretty hard work." (Ask Joe Manchin.) But this task that belongs to legislators, and not to courts or bureaucrats.
Indiana is not an outlier. Many Republican Governors, several of whom may be presidential or vice presidential candidates, are approaching this issue deliberately:
Leaders in many Republican-led states seem to be biding their time. An exception has been West Virginia, where lawmakers advanced a near-total ban this week after a court blocked enforcement of an 1849 abortion ban in that state. But in Nebraska, where an effort to pass a trigger ban narrowly failed early this year, Gov. Pete Ricketts has discussed the possibility of a special session but has yet to call one. In Florida, Gov. Ron DeSantis has largely avoided questions about whether he would take immediate steps to pass new restrictions. In South Dakota, where a ban went into effect after Roe was struck down, Gov. Kristi Noem backed away from an initial pledge to call lawmakers to the Capitol to consider more abortion bills. And in Iowa, Gov. Kim Reynolds has said she was focused on getting the courts to allow for enforcement of existing restrictions that had been blocked. "Right now it wouldn't do any good to call a special session," Ms. Reynolds, a Republican, told local reporters last month.
The Times focuses at some length on Indiana, which has a unified Republican government:
But even in a state where Democrats have little political power, Indiana Republican leaders find themselves in a political bind. Some Republican legislators, and many of the party's most outspoken supporters, want to ban abortion with few or no exceptions. But one Republican state senator, Kyle Walker, said he wanted abortion to remain legal during the first trimester of pregnancy. And many in the party have raised questions about whether and how to include exceptions for rape, incest and a pregnant woman's health.
"This is one of the most complex issues any of us will ever try to tackle in our lifetime, and this just demonstrates the near impossibility of threading the perfect needle" in a short session, said State Senator Mark Messmer, the Republican who voted against the measure in committee.
Again, by decree "judges of wisdom" stole this "complex issue" from the democratic process, because they knew better. They didn't. Now, the elected representatives of the states will wrestle with where to draw the line. And they will draw the line somewhere between an absolute ban, and what Casey permitted. No longer can legislators simply pass absolute bans on abortion, knowing that the laws will never go into effect because of Roe. Now, the rubber meets the road. Some states may start with very strict bans that, over time, prove too draconian, and will be revised. With the zero-sum game of Roe over, there will be more space to negotiate and compromise. Fittingly, states may wind up somewhere around the fifteen-week line Mississippi crafted, and Chief Justice Roberts approved.
Justice Scalia's clarion call in Casey rings true three decades later:
Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
The Court got out of this area, and to paraphrase Lord Mansfield, democracy is working itself pure.