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The Supreme Court declared a constitutional right to abortion 50 years ago in Roe v. Wade. What followed was a religious crusade that’s dominated law and politics, culminating in last summer’s decision overruling Roe in Dobbs v. Jackson Women’s Health Organization.
Of course, we had a good idea of what was going to happen in Dobbs the month before the ruling came out, when Politico published a leaked draft of Justice Samuel Alito’s opinion tossing federal abortion rights — and decades of precedent — aside. We knew for sure when the opinion was issued on June 24, 2022, with five Republican appointees voting to overturn Roe: Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. (Chief Justice John Roberts wrote a separate opinion that didn’t go as far as his GOP colleagues but still would have further curtailed abortion rights.)
The reality is that abortion opponents don’t want the court to stay out of the issue.
Predictably, the loss of federal abortion rights caused a series of nightmare scenarios across the country, with red states pushing bans and 2022 becoming what the Guttmacher Institute, a research organization that supports reproductive rights, called “a devastating year for abortion rights and reproductive health generally.” Most abortions are banned in at least 13 states, according to The New York Times’ tracker. And though they won’t pass through the Senate or the White House, the newly minted Republican majority in the House is pushing for further restrictions.
And it’s important to remember what it can mean when abortion is banned: Not only is health care unavailable, it’s criminalized. For example, questions were raised in Alabama recently over whether the attorney general was in favor of imprisoning women for taking abortion pills. The mere possibility of such a thing is a function of the supposedly benign act of “sending the issue back to the states,” as abortion opponents have framed the Dobbs decision.
Indeed, Republicans have felt at the polls the public’s general disgust with the extreme ruling. After all, a majority of Americans believe abortion should be legal in all or most cases. Even former President Donald Trump, who appointed three of the justices in the Dobbs majority during his presidency, acknowledged the issue’s negative impact on Republicans politically in last year’s midterm elections, posting on his Truth Social platform afterward:
It wasn’t my fault that the Republicans didn’t live up to expectations in the MidTerms. I was 233-20! It was the “abortion issue,” poorly handled by many Republicans, especially those that firmly insisted on No Exceptions, even in the case of Rape, Incest, or Life of the Mother, that lost large numbers of Voters. Also, the people that pushed so hard, for decades, against abortion, got their wish from the U.S. Supreme Court, & just plain disappeared, not to be seen again. Plus, Mitch stupid $’s!
And that’s just the damage that Dobbs itself has wrought — which, to be clear, cannot be overstated. There’s no guarantee that’s the end of the road even for the Supreme Court. The logic of Alito’s Dobbs opinion is the court purporting to stay out of the issue. But on top of that approach feigning ignorance of the court’s power and impact on society, the reality is that abortion opponents don’t want the court to stay out of the issue.
Rather, they want the court to affirmatively ban abortion through so-called fetal personhood, as opposed to just allowing states to choose whether to ban it or not. The Supreme Court turned away an appeal pressing the personhood argument last year. And it would be inconsistent with Dobbs for the Supreme Court to embrace the fetal personhood argument. But Dobbs overruled long-standing precedent in Roe, so we can’t assume that the court will be consistent about an issue on which it hasn’t been consistent.