Just a week after the U.S. Supreme Court abolished the constitutional right to abortion, the 49-year legal regime introduced by Roe v. Wade has given way to a horrific and confusing landscape. Of course, the right to abortion was never completely secure and abortion services were often denied to those who most needed them. And there remain sizable bastions in blue America where clinics won’t close and the major source of immediate anxiety is whether something can be done for women and their families elsewhere. But in much of the country, we are entering a new era of constantly shifting state laws and regulations, guerrilla legal maneuvers, political posturing, and fallback plan after fallback plan for abortion-rights advocates.
But before we completely descend into the chaos of a post-Dobbs world, it’s worth asking a simple question: Can the genie be put back in the bottle? For nearly a half-century, legions of anti-abortion activists dreamed of turning back the clock to January 21, 1973, the day before Roe. Can we even dream of turning back the clock to June 23, 2022? Could Dobbs be reversed like that decision reversed Roe?
Obviously, it can’t happen soon. Now that Roe has been reversed, you can safely assume that Chief Justice John Roberts has fully overcome his compunctions about moving too fast to kill abortion rights. He’ll be a solid sixth vote defending the new Dobbs precedent. So barring a change in the size of the nine-justice Supreme Court, it would take a net change of two justices before the Court could even begin to reverse Dobbs.
On the other hand, it’s worth remembering how unlikely a decision like Dobbs looked until very recently. Just over six years ago, the Supreme Court, in a 5-3 decision, slapped down TRAP (Targeted Restrictions on Abortion Providers) laws — previously the most promising avenue for seriously eroding abortion rights — in Hellerstedt v. Whole Women’s Health. There was an open seat on the bench following the death of Justin Antonin Scalia earlier that year, and Merrick Garland had been nominated by President Obama to fill it. Yes, Senate Republican leader Mitch McConnell refused to countenance even confirmation hearings prior to the 2016 presidential election. But it was almost universally assumed that summer that Hillary Clinton would handily defeat Donald Trump, and already Democrats were debating whether she should renominate Garland or choose someone more forthrightly progressive. Before long the 5-3 pro-choice Court would be 6-3.
Instead, Trump won and Garland’s seat went to Neil Gorsuch. Then pro-choice Justice Anthony Kennedy was succeeded by Brett Kavanaugh, and then in a final calamity, Justice Ruth Bader Ginsburg died just in time to be replaced by Amy Coney Barrett.
It was all so improbable. But improbability can work both ways.
The political conditions necessary for Democrats to re-flip the Court are exceptionally daunting. They’d have to hold on to both the White House and the Senate for long enough to get lucky with conservative vacancies. Democrats have a decent chance to maintain control of the Senate in 2022, but the 2024 Senate landscape is horrible for them (three Democratic seats, and all ten Republicans seats up that year were carried by Trump twice). And obviously, a 2024 Democratic presidential win is hardly a safe bet.
Beyond that problem for Democrats, the kind of Supreme Court vacancies we’ve seen since 2016 are significantly less likely. Scalia was 79 when he died; Ginsburg was 87. Kennedy retired at 82, Breyer at 83. The oldest justice today (Clarence Thomas) is 74; Trump’s three justices are under the age of 57, mere tykes by Supreme Court standards.
As time goes by, moreover, the prospect of simply re-establishing Roe and Casey as precedents will fade; progressive justices would almost certainly need to reach agreement on a new foundation for abortion rights, likely centered on equal-protection claims rather than the shaky ground of substantive due process on which Roe and later Casey rested. All this will take time and then preparatory litigation, with conservatives bitterly fighting a rearguard action.
Democrats could, of course, speed up the process of reshaping the Court by expanding it, which although it has been politically taboo since FDR tried it in 1937, can be accomplished by Democrats alone if they hold a trifecta and sufficient unity to pass it. As my colleague Jonathan Chait observes, the conservative radicalism of the current court is making “court-packing” more practicable every day. It’s worth remembering, too, that Franklin Roosevelt’s threat of court-packing had a salutary effect on the conservative Court that had been blocking virtually all New Deal legislation. But Democratic control of the House is likely to end in November, and Democratic senators are famously slow to embrace “radical” institutional reforms.
For the moment, abortion-rights advocates have no choice but to play the terrible hand they’ve been dealt by the Court, and by the under-committed Democratic politicians and complacent elites who stood by as conservatives hollowed out and then killed the constitutional right to choose. The fight to maintain reproductive rights across a ragged landscape of state legislatures and courts will be a twilight struggle waged against ruthless opponents who have no interest in compromise or any compassion for their victims. But it’s worth imagining, or reimagining, how a national edifice of legal protections for abortion, complemented by policies and resources to make it a real choice for all, can be reconstructed. That won’t begin in the U.S. Supreme Court, unfortunately, but it might ultimately end there.
More on Life After Roe
- Kansas Shows the Potential Power of Pro-Choice Republican Voters
- Religious Liberty Is for Pro-Choice People Too
- The Right to the Ballot and the Body