"Abortion Politics and the Court: How the Left is Winning by Losing"

Prof. Eric Segall is "radically" pro-choice while a long opponent of Roe v. Wade. He cites an op-ed by a leading conservative pro-life [I'm not going debate labels here] advocate:

If the ultimate goal of the pro-life movement is to reduce the number of abortions, not just to change legal precedent, then these numbers and these electoral outcomes are deeply alarming. If present trends continue, then abortion opponents will have won an important legal battle, but they’ll ultimately lose the more important cultural and political cause.

Segall argues Roe and Casey were wrong on legal and pragmatic grounds. His blog here is more pragmatic. But, why were they wrong legally? 

Casey reasonably upheld Roe as precedent. Roe itself (and I have said a lot here and elsewhere) was a correct application of precedent and constitutional principles. At worst, Roe went too far. 

Nonetheless, some right to choose would be appropriate. This also (to jump ahead) will cause problems with his pragmatic concerns. The pro-life movement (which has a strong anti-feminist and evangelical component) would still have arisen if Roe-lite was decided. If abortion is murder, it is still murder if it only is done 10% of the time or if states have the discretion to allow it. There was a strong constitutional personhood movement. 

Also, the Medicaid cases -- as even strong Roe critic (who later supported Casey on precedential grounds) John Hart Ely Jr. noted, were wrong on equal protection grounds. I also think they are wrong on freedom of religion grounds. Again, pushback is part of a wider whole that helped the Reagan Revolution and later on the Trump presidency.  

Segall claims to be a strong feminist. I will grant his honesty if not quite his judgment. Abortion rights are fundamental to upholding sexual equality. 

He grants that the Supreme Court is never really restrained by text. Abortion being an unenumerated right is not grounds to deny protection. Legally, abortion rights should be protected.

Segall's strongest and most emotional case is pragmatic. Roe v. Wade resulted in a strong backlash. But, the idea that Roe itself was essential is a much harder case to make. 

First, again, I think even Segall would accept a limited right to abortion [at least, state discretion to allow, and abortion in extreme cases, such as when very important for health]. 

Second, a range of things influenced the conservative backlash. The literature, for instance, suggests that abortion was used as a more polite tool by people more concerned about race. 

Segall suggests Roe was key to Trump being elected. Really, dude? He wouldn't have been elected for other reasons?  

Americans prefer making their own decisions when it comes to deeply contested moral issues and do not want to be told how to live their lives by the Supreme Court.

History suggests the people are rather comfortable with giving the Supreme Court broad power to set constitutional rights. The same conservative backlash that led to Dobbs led to rulings overturning affirmative action programs and gun regulations. Segall might be (somewhat*) consistent regarding a limited view of judicial review. Americans are not.  

A counterfactual regarding Roe v. Wade being decided differently is at this point basically a dubious parlor game. We can limit ourselves to Dobbs. 

The op-ed notes that the abortion rate has slightly risen. A logical reason is that it led to less reproductive healthcare, resulting in somewhat more pregnancies. 

Abortion bans are of limited benefit to reducing abortion generally. They are more likely to lead to unequal results, physical harm, and other bad things. 

Jimmy Carter in one of his books noted he opposed abortion bans, referencing the experience in Latin America. He opposes abortion but bans aren't a productive approach to reduce abortions. Rachel Held Evans said the same thing when supporting Clinton.

It is appreciated that there was a strong pro-choice backlash to Dobbs. Dobbs was an extreme overreach, even if you are a Roe critic as Roberts's concurrence underlined. Again, John Hart Ely Jr. supported Casey.

The "winning" comes with a serious cost. People in Florida and Texas, the third and second most populous states in the United States, especially have been burdened. We have national rights in this country. Should we just handwave chunks of people who do not have them since "so many" do? 

It is great that a mixture of state ballot measures and court rulings [the people making their own decisions, right?] have protected abortion rights or will be on the ballot in November. Constitutional rights, however, should not be on the ballot. 

State-authorized segregation is both wrong and unconstitutional. Nonetheless, it took a Supreme Court ruling to set the principle in place before Congress strongly started to act. There was a strong backlash, one that helped Republicans gain control.

Some people have called out Democrats for not supporting abortion rights by national legislation. A  majority of Republicans and a minority of anti-choice Democrats combined to make this impossible.  

As with Brown, Roe provided a safety net. Now, the safety net is gone. "The Left is winning" the battle in many ways. There is a long way to go.** 

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* Segall did not oppose the same-sex marriage cases. 

The only consistent reason that comes to mind here is that the public as a whole is not as similarly split on the issue. It cannot be a consistent application of his tough rule for judicial review. The ruling was 5-4! 

The public is more divided over trans issues, as shown by legislation passed in many states. Does he think such laws should be upheld? 

Likewise, in the past, Segall noted abortion should be seen as a values policy debate, not a constitutional right. He does support a constitutional amendment that more clearly protects it. I think the current Constitution does. 

Why is homosexuality different?  Sex and sexual orientation discrimination are both class-based.

What level of public support is necessary to uphold clear constitutional rights, including freedom from slavery (forced motherhood)? Roe v. Wade was decided 7-2. There was a strong public dissent but the same is true for a range of issues. 

You are left with "this caused that" which is far from apparent, including by scholars who studied the matter. Segall notes he has lived in Georgia for a long time and has first-hand experience.

** There is an argument that a national abortion law is unconstitutional. 

Congress has the power to enforce the 14th Amendment, but Dobbs held there is no right to choose an abortion protected by that amendment. The Supreme Court repeatedly overturned national legislation on federalist grounds.  

Can an abortion rights statute be protected on Commerce Clause grounds? Perhaps. There is also the possibility that Congress includes a jurisdiction-stripping provision that protects the law from review.