Ramesh Ponnuru takes on The New Republic’s conventional wisdom on Roe v Wade – in the pages of TNR – which is that the fall of Roe  would be good for abortion and bad for pro-lifers.

The New Republic‘s theory is, if I can be so bold, a mite too convenient for complacent pro-choicers. The truth is that the public is not as pro-choice as this magazine would like to believe, nor are pro-lifers so tactically inept.

He first tackles the polling, going through the deep problems with most abortion-related polling (in essence they don’t define what Roe and Doe say when asking people if they support the rulings)

I am aware of only one poll that allowed respondents to choose options that included both what one might call the moderate pro-life option (prohibiting abortion with exceptions for rape, incest, and the mother’s life) and the moderate pro-choice option (allowing abortion for any reason in the first trimester). This poll was conducted by Richard Wirthlin, who is, admittedly, himself a pro-lifer, in November 2004. He found 55 percent taking either moderate or hard-core pro-life positions, compared with 40 percent on the pro-choice side. If that’s in the ballpark, you can expect more support for restrictive laws than the polls tnr likes to cite.

He then takes on the Congress scenario, dealing with the prediction that if Roe fell and the issue came to Congress, the GOP would suffer most, pushed by its base to go for the strictest legislation possible. Ponnuru argues:

Honesty, however, should compel tnr to admit that pro-choicers have also been known to overreach. It was their insistence, in 1993 and 1994, that the Freedom of Choice Act include public funding of abortion that stymied the legislation. Most pro-lifers, meanwhile, have embraced an incrementalist strategy–pushing for small-bore legislation like the ban on partial-birth abortion rather than a Human Life Amendment to the Constitution–over the last decade.

Maybe, then, it would be Democrats who would be stuck with an uncomfortable calculus: Do they please a liberal base that wants to keep late-term abortions legal or a general public that doesn’t?

He suggests that a Congress led option is unlikely – that neither side has the strength or energy to pursue it. But what if it comes to the states?

So most of the action would be in the state legislatures. Either side could overreach in individual state legislatures, but sweeping nationwide change would be off the table. Voters would therefore have less reason for anxiety about Republican anti-abortion zealotry. Neither side’s activists would have the incentive that exists today to impose rigorous tests of commitment on presidential candidates. If, after a while, it became clear that the federal courts were going to stay out of abortion policy, pro-lifers would cease to care as much if the Republican nominee disagreed with them. The debate over abortion could become, in this respect, like the one over evolution. Large numbers of Americans are passionate on both sides of the debate, and it flares up in various localities. But there is not much national policy on it, and politicians in Washington don’t have to spend much time on it.

But what if Roe and Doe don’t fall in one fell swoop? What if the Supreme Court dismantles it in bits?

Thus far, we have been considering the consequences of a straight reversal of Roe. But it’s more likely that the Supreme Court would repeal Roe in installments. The current Court might be willing to allow prohibitions on partial-birth abortion, for example. A future Court, with new anti-Roe appointees, might later conclude that its abortion jurisprudence was unworkable and get out of the inherently subjective business of deciding what constitutes an impermissible "undue burden" on the right to abortion. 

Judicial gradualism might cause pro-life politicians some short-term political heartburn. The Court would be, for some period of time, poised to strike down Roe without having actually done so. That would maximize fears–on the part of both pro-choice voters and pro-life politicians–of what the consequences of repeal would be. But what’s more important is that state legislatures would regain lawmaking authority over abortion bit by bit, probably starting with the ability to impose the most politically popular regulations. In such circumstances, the pro-life movement would hardly lose its fervor and political raison d’être.