Overturning Roe vs. Wade

Sunday, May 29th, 2022

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What Happens Next is a podcast where an expert is given just SIX minutes to present his argument. This is followed by a Q&A period for deeper engagement.

Today’s topic is overturning Roe vs. Wade.

Our Speakers are John McGinnis and Howard Husock.


Larry Bernstein:
Welcome to What Happens Next. My name is Larry Bernstein.

What Happens Next is a podcast where the speaker gets to present his argument in just Six Minutes and that is followed by a question-and-answer period for deeper engagement.

Today’s discussion will be on overturning Roe vs. Wade.

Our first speaker will be John McGinnis who is the George C. Dix Professor in Constitutional Law at Northwestern’s Pritzker School of Law. John will evaluate Justice Alito’s Dobbs opinion and the originalist approach to jurisprudence.

Our second speaker will be Howard Husock who is the Senior Fellow of Domestic Policy Studies at AEI. Howard will be speaking about the political implications of overturning Roe vs. Wade. I want to find out from Howard if pushing the abortion decision away from the courts to our elected representatives will increase or decrease conflict in our society?

The abortion issue is red hot and today’s discussion will be highly provocative. I will moderate this session to be politically neutral. I believe that the role of a journalist is to ask experts questions and to refrain from expressing an opinion. This is how I plan to behave. Our experts will express their own opinions and it is my hope that whatever you believe about Roe vs. Wade this discussion will challenge you.

As I just mentioned, we are going to hear from a constitutional law professor who applies an originalist perspective and we will also hear from a domestic political policy analyst. We will not discuss the morality of abortion or legislative solutions. The abortion topic is enormous, and we can’t cover it all, and debate each aspect. My objective today is limited to introducing two ideas which are rarely discussed in our political circles.

Buckle up.

If you missed it, check out last week’s program with Paul Kennedy who is a Professor of History at Yale. Paul is one of our greatest living historians who discussed his classic would work The Rise and Fall of the Great Powers that tells the story about why the US will experience relative decline and that China will continue to be an ascending power.
All right, let’s begin with Northwestern law professor John McGinnis.


John McGinnis

Topic: Evaluating Alito’s Leaked Dobbs Opinion
Bio: George C. Dix Professor in Constitutional Law at Northwestern Pritzker School of Law
Reading: Overturning Roe – A Return to Fundamentals is here

John McGinnis:

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Howard Husock

Topic: Federalism will Solve Abortion Conflict
Bio: Senior Fellow of Domestic Policy Studies at AEI
Reading: Could Overturning Roe End the Abortion Wars? Yes, Thanks to Federalism is here

I am not a constitutional scholar. I’m not somebody who has expressed public opinions about the issue of abortion. I am very interested in the American federalist system and localism in America, the decentralization of our governmental structures that has tended to work out compromises on some of our hottest, most divisive issues. And I’m hoping that the leaked Justice Alito decision might end the abortion wars that we’ve had for the last 50 years. And let me explain how that might happen by using a very obscure example.

100 years ago, the most divisive issue in America was whether to allow the sale of alcohol. It was such a strong issue that Al Smith, the Democratic nominee for president in 1928 lost probably because he was a Catholic and from a wet state, New York. This is beautifully detailed in a wonderful book that I recommend called Last Call by the popular historian, Dan Okrent, about the rise and fall of Prohibition. Okrent points out that the strongest interest group was the Anti-Saloon League.

In 1915, 50% of the overall population lived in a dry state. But the Anti-Saloon League was not content. It did not want to rest until it passed a constitutional amendment to ban the sale of liquor. As hard it is to pass a constitutional amendment, they succeeded. This should’ve been their great victory but ultimately, it was the beginning of the end. And you’ll see my parallel with Roe v. Wade.

The whole country was in a frenzy during Prohibition. The rise of organized crime. Al Capone. What happened? Franklin Roosevelt, the next governor from New York to run for president, was elected and quickly moved to repeal the 18th Amendment with the 21st Amendment. That was the end of Prohibition, but it was not the end. This is my key point here. It was not the end of dry states. Seven states remained completely dry and a significant part of the country adopted so-called local option where counties or municipalities had the right to remain dry.

So, after the repeal of Prohibition, compromise became the order of the day, and wet versus dry rapidly faded from our discourse that it seems like a bizarre footnote to our history. What’s the parallel with Roe v. Wade? Well, before Roe we, Roe v. Wade, 20 states had adopted liberal abortion laws, including California, a law signed by Ronald Reagan in 1967. The trend was very clearly going in the direction of pro-choice, but then Roe v. Wade stopped the political process in its tracks. The possibility of compromise was eliminated and instead we’ve had 50 years of the most divisive debate in our politics.

So, what might happen post Roe v. Wade? Something not that dissimilar to post-Prohibition. Even the Mississippi law which came before the courts does not outlaw abortion. It legalizes it up to 15 weeks. First trimester. Some of these more draconian laws that we’re seeing in Oklahoma and Texas, let’s see if they withstand the will of the electorate. Right now up to this point we’ve had politicians who could take what I would call a free kick. They could oppose Roe v. Wade without facing the voters. Well, if they continue to oppose abortion, they’ll have to face the voters. A lot could change. The American tradition of localism and federalism could once again bring us to a happier place. It won’t happen right away, but over time.

Howard Husock:

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