Forty-nine years after it was decided, Roe v. Wade is gone. This morning, in Dobbs v. Jackson Women’s Health Organization, a majority of the Supreme Court decided that “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” Roe has been centrally “responsible for the emergence of the conservative legal movement”; conservatives, at least for now, have won that fight.
I’ll leave it to others to parse the several decisions (and to do the interesting work of comparing Justice Samuel Alito’s opinion for the majority with the earlier-leaked draft). Many people are asking: What’s next? It’s rather obvious—but broadly misunderstood, so worth noting—that the Court’s decision does not mean that abortion is now illegal across the United States. Some briefs filed with the Supreme Court in this case argued that the Constitution not only did not protect the right to abort a fetus but also affirmatively required states to protect fetal life. (The Fourteenth Amendment states: “No State shall . . . deprive any person of life . . . without due process of law.”) But no justice in Dobbs embraced that view. Rather, state governments, or Congress, will now be able to decide through democratic processes what abortion law should look like in the United States.
Some states will decide to limit abortion along the lines selected by the legislature of Mississippi in this case—outlawing (with exceptions) abortions after fifteen weeks’ gestation. (That’s well before the fetus is “viable” to live outside the womb, the prior Supreme Court standard under Roe and 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey.) Some states are likely to go further and outlaw abortion after a fetal heartbeat is detected or even at any point post-conception. Others will continue to permit late-term abortions, in many cases even past viability, as does New York, which allows abortion until birth if a medical opinion provided in “good faith” determines the procedure “necessary to protect the [mother’s] health.”
Under this state-by-state patchwork, the United States may develop an abortion regime that starts to look more like Europe’s. Eight of the 50 European nations do not allow for any elective abortions (i.e., those sought without justification)—including Finland, Poland, and Great Britain, as well as Andorra, Lichtenstein, Malta, Monaco, and San Marino. (Most of these are nevertheless quite liberal about permitting abortion in practice, with a host of justifications—including in Britain, for “socioeconomic reasons.”) Among the 42 nations that permit elective abortions, only the Netherlands is as permissive as the United States’ now-defunct Roe regime—allowing abortion-on-demand until the 24th week of pregnancy, when a fetus is often deemed viable with modern medical care. Fully 39 of the 42 European nations that allow elective abortions permit them only up to a point in pregnancy earlier than the 15-week standard adopted by Mississippi and considered in Dobbs. The mix of laws across Europe puts into context the “draconian” laws warned about by the dissenting justices—Stephen Breyer, Elena Kagan, and Sonia Sotomayor, in a jointly authored opinion.
The dissenting justices’ claims to the contrary, the Court’s majority opinion is quite clear in stating that its holding in Dobbs does not imperil other precedents involving marriage, procreation, and human sexuality—including Obergefell v. Hodges (same-sex marriage), Lawrence v. Texas (sexual intimacy), and Griswold v. Connecticut (contraception). Though those decisions rest in part on parallel foundations to Roe v. Wade, the Court emphasizes that “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’” (Justice Clarence Thomas does call for revisiting those cases, consistent with his long-held view that the “substantive due process” doctrine underpinning these cases is inconsistent with a proper understanding of the Fourteenth Amendment. But in this regard, he notably writes only for himself.)
Also, state legislatures will not be able to prevent their citizens from traveling out of state to seek an abortion in a state with more permissive abortion laws. Justice Brett Kavanaugh, one of the five justices signing the Court’s majority opinion, wrote separately to make this clear: “[M]ay a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.” Kavanaugh writes just for himself, but it’s not hard to count the votes. Chief Justice John Roberts, writing alone, agreed with the Court’s decision that the Mississippi law was constitutional but would have avoided reconsidering Roe and Casey, in whole, in this case. I think it’s a safe bet that Roberts—and others, if not all of the other justices in the majority—ascribes to Kavanaugh’s view. The three dissenting justices continue to find the right to abortion in the Constitution and thus would find any such law unconstitutional; incoming Justice Ketanji Brown-Jackson, replacing Breyer, almost certainly would, too.
With 26 of 50 states having signed a brief asking the Supreme Court to overturn Roe, and 21 states asking the Court to uphold Roe, a constitutional amendment on the abortion question isn’t getting ratified anytime soon. If Congress decides to act, it could do so under existing precedent—either to preempt state laws limiting abortion or to outlaw abortion nationwide. Some scholars suggest that Congress could do this directly under the Fourteenth Amendment. I’m less certain, given existing Court decisions interpreting Congress’s powers to enforce that constitutional provision, but regulating this health decision—like hosts of others governed by federal law—clearly would be allowed under the Supreme Court’s modern, expansive reading of Congress’s power to regulate interstate commerce.
Progressives are thus sure to continue to press Congress to enact abortion protections into law by statute. But I’m guessing that any such efforts, if sufficiently controversial that they would require changes to the Senate’s filibuster rule to enact, are likely to fail, at least in the near term. Most senators understand full well that it’s easily within the realm of possibility that America might someday have a pro-life president with pro-life majorities in the House and Senate, too.
Thus, abortion policy is likely to be in political play for the foreseeable future. The abortion issue will certainly be felt in this fall’s elections, perhaps broadening Democrats’ playing field in an otherwise adverse political and economic environment. Abortion may even shake up existing political coalitions, as an issue once relegated to the hypothetical—with the real power held by unelected courts—is now returned to the people’s representatives. Surely, intraparty political pressures are likely to induce some GOP-controlled legislatures, previously constrained by Roe, to overshoot, and embrace restrictions disfavored by centrist voters. If so, they’ll pay a political price.
In other words, since the majority of Americans hold mixed views on abortion regulation—supporting neither complete bans nor abortion on demand—abortion law going forward is probably going to reflect this outlook. There will be significant variance among states, and most states’ arrangements will not fully satisfy the pro-choice or pro-life camps. And each camp will continue to press its case.
Precisely because abortion is, in the Dobbs Court’s words, a “profound moral issue”—encompassing women’s bodily autonomy, on the one hand, and the interests of the unborn child, on the other—the political dispute over the issue will endure. The Court’s effort to resolve it for the people in Roe and Casey—like its earlier effort to resolve the issue of slavery in Dred Scott v. Sandford—was, without a political consensus, destined to fail. Today, that failure is official.
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