Thomas Gallatin / April 28, 2022

The High Stakes for Conservatives on Roe

How the Supreme Court decides Dobbs could have huge and lasting implications for the conservative movement.

As June fast approaches, one of the most significant and most anticipated U.S. Supreme Court rulings in a generation will be handed down. The question the justices will be deciding in Dobbs v. Jackson Women’s Health Organization directly impacts whether the landmark and infamous Roe v. Wade ruling of 1973, and perhaps Planned Parenthood v. Casey of 1992, will stand or fall. With the current makeup of the Court leaning in a conservative direction, pro-life advocates are guardedly hopeful that Roe will be overturned and that the issue of the legality of abortion will once again be properly decided by individual states and not the federal judiciary.

There is little sound legal argumentation today suggesting that Roe is anything other than an example of bad jurisprudence. Even many on the Left have admitted as much, though they still contend that abortion should be a fundamental right. And that is the crux of the issue — not whether Roe should have ever stood, but the notion that if it falls, so too would abortion. Indeed, in several states that would be the case, though not likely as many as the left-leaning Guttmacher Institute’s estimate of 26.

So, two differing scenarios face conservatives depending on how the Court decides Dobbs. Political analyst Philip Klein argues that the Court’s failure to overturn Roe would not only have broad negative impact on recently enacted state laws limiting abortion but that “it could be the final blow to the conservative movement as it has existed for decades.” The reason for this, Klein suggests, is that opposition to abortion has been one of the primary ideological issues uniting a wide swath of conservatives, despite disagreement over the best ways to combat the issue.

Traditional constitutional conservatives have put their faith in the judicial process, where there is a natural give and take. Not every issue is won, but that doesn’t mean that the system is broken. Indeed, these conservatives see this as a feature, not a bug, of the American political system.

However, the newer populist conservatives have tired of what they see as a slow and steady reality of losing ground to the Left on both cultural and political issues. They’re hungering to fight back, arguing it’s time to stop playing by what they see as the Left’s rules and refuse to give the other side any quarter. Chief Justice John Roberts’s capitulation on ObamaCare is repeatedly pointed to as evidence enough that Washington is too broken to be trusted.

Klein therefore notes that if the Court fails to overturn Roe, it may only serve to confirm to the new populist conservatives that working within the current system to nominate judges based upon the ideal of strict adherence to the Constitution simply doesn’t work. It will prove to some that it’s time to throw off such past sentiments as ineffective when change is needed. Ironically, they’ll insist that conservatives must adopt the Left’s approach to the courts, meaning developing and nominating politically activist judges, just for conservative causes.

If the Court overturns Roe, it will serve as confirmation of the traditional conservative method of working steadily within the principles of the Constitution, while also encouraging a renewed trust in the governmental system the Founders established.

The stakes for conservatives on Roe v. Wade may be even higher than merely the question of who decides abortion law.

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