Life after Dobbs
The right to an abortion is not protected by the Constitution, the Supreme Court ruled this morning. The early May leak of the lead opinion in Dobbs did not diminish the seismic impact of its official publication this morning. In a 6-3 ruling on the Mississippi law and a 5-4 decision on the broader question of Roe, the court issued arguably its most politically significant judicial decision in a generation when it was delivered this morning.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Justice Samuel Alito wrote for the court. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The decision’s consequences will be profound, wide-ranging and unpredictable. First, the immediate and certain impact of the decision. In thirteen states, trigger laws mean that abortion bans of varying severity have either already kicked into effect, will do so soon or can after state action. In eighteen states, the right to abortion is written into state law. That leaves nineteen states where things are less clear cut. (The Wall Street Journal takes a helpfully thorough look at this patchwork.)
In the short-, medium- and long-term, the decision will be (yet another) stress test for America’s system of government. The tangle of state-level abortion law regimes, inevitable attempts at federal intervention, messy, contentious questions of overlapping jurisdictions, the and associated legal and political headaches. All of this poses a challenge for America’s courts, lawmakers and civic leaders.
A question hanging over these rows is whether or not Americans can ways to respectfully disagree on an issue of conscience. The answer will be determined as much by culture as anything else. And I fear the results will not be pretty. We have already seen an alleged attempt on the life of a Supreme Court justice and the vandalization of pro-life pregnancy centers.
Roe changed American politics in profound ways that few predicted at the time. Indeed, the reaction to the 1973 decision was positively muted — a far cry to the Sturm und Drang that today’s ruling has been met with. But it steadily transformed politics, galvanizing the conservative movement and accelerating the great realignment that changed the country.
Now that half a century of post-Roe jurisprudence has been overturned, the politics of abortion are set to get less predictable still. Inevitably so, given that the issue is now in the hands of the voters.
That basic fact forces will force both the pro-life and pro-choice movements to reckon with the complicated views of the American people on the issue. Abortion activists often seem to confuse polls showing a majority opposed to overturning Roe with the idea that the American people support a hyper-permissive abortion regime that takes no issue with ending pregnancies in the third-trimester.
In a comprehensive review of polling of public attitudes on abortion post-Roe, AEI’s Karlyn Bowman lays out the complicated, often contradictory views of the American people:
Most Americans do not want the Supreme Court to overturn Roe v. Wade. They are, however, willing to put some restrictions on abortion’s use… They say abortion should be generally legal in the first trimester but oppose it in the second and third trimesters. These opinions regarding restrictions highlight the nuanced nature of American public opinion on abortion.
The question is whether or not — and how — abortion debates in America get less black-and-white now that the pro-life and pro-choice movements must reckon with the views of the country’s moderate middle. In a sign of what may be to come outside of deep-red and deep-blue America, Virginia governor Glenn Youngkin has tasked lawmakers with a ban on abortion in most circumstances after fifteen weeks. But any possible moderating effect of returning the question of abortion law to the voters will have to wait.
While the pro-life movement celebrates, Democrats are on a war path. “The Republican-controlled Supreme Court has achieved the GOP’s dark and extreme goal of ripping away women’s right to make their own reproductive health decisions,” Nancy Pelosi said this morning.
The stakes of American politics have been raised once again. Pressure to abolish the filibuster will intensify. That still seems unlikely for the time being, but exactly where Dobbs takes American politics remains unclear. Whatever happens next, the country changed today.
Biden’s abortion journey
Few politicians better encapsulate the hardening of partisan lines on abortion than Joe Biden. The president was, until remarkably recently, the kind of Catholic pro-life Democrat which the party no longer accommodates. Until 2019, Biden supported the Hyde Amendment, which restricted federal funding for abortions. Now he heads an administration set to use the levers of the federal government to fight tooth and nail for abortion access across the country. “This fall, Roe is on the ballot,” said Biden today. “Personal freedoms are on the ballot, the right to privacy, liberty, equality, they’re all on the ballot.”
In his remarks, the president noted that original decision in Roe was supported by Republican appointees. Missing from his account of the abortion-rights story is what happened to Democratic lawmakers who once supported a constitutional amendment overturning Roe. Biden was one such senator once. Absent from his recent public utterances on the issue of abortion is an especially detailed explanation of why he changed his mind.
How we got here
The Dobbs ruling is contingent on a striking series of events and decisions: the Senate’s blocking of Obama’s attempt to fill a court seat in his final year in office, the unlikely alliance between the religious right and Donald Trump, the Kavanaugh confirmation fight and, perhaps more immediately than anything else, Ruth Bader Ginsburg’s decision not to retire, allowing Trump his third Supreme Court pick shortly before the 2020 election. But this far-from-inevitable series of events should not distract from the overturning of Roe as one of the biggest achievements of the conservative movement, or any political movement in recent American history.
What you should be reading today
Matt Purple: A pro-life revolution
Ben Domenech: Title IX reminds us that the cultural left will lose
Cockburn: Roe is gone — now what?
Cole Summers, Common Sense: There are still pioneers in America. Cole Summers was one
Lance Murrow, Wall Street Journal: Could this be the antebellum age?
Jessica M. Goldstein, Politico magazine: DC power players are paying thousands to find dates