Last week, the Supreme Court finally took up the case of Dobbs v. Jackson Women’s Health Organization, raising the specter of a clock turned back to 1973, before Roe v. Wade created a constitutional right to abortion.
For those who favor greater reproductive rights, the Supreme Court’s decision to reconsider long-established precedent is deeply ominous. There won’t be a ruling until spring or summer of 2022, and it’s impossible to guess exactly what the new conservative majority might support. The Court could surprise us, as it did with the 1992 decision Planned Parenthood v. Casey; rather than making it illegal to terminate a pregnancy, the Court reaffirmed its prohibition on banning abortions that occur prior to fetal viability (around 24 weeks), while opening the door to limited state restrictions. Or the Court could return the country to the pre-Roe status-quo ante, in which states could effectively set whatever policies they wanted.
What might the latter scenario look like? Below is a preview of the savage landscape of inequality and culture war that could be unleashed by the Dobbs decision.
Abortion may end rapidly in many states
According to an analysis from the Guttmacher Institute, 23 states “have laws that could be used to restrict the legal status of abortion” if the Supreme Court gets the federal courts out of the way. (That count includes Texas, which just passed a law banning abortion as early as six weeks into pregnancy.) Eleven states have “trigger laws” that would impose abortion bans or other restrictions the minute Roe is reversed. Nine states have left pre-Roe restrictions on the books that could be revived. And lawmakers in three other states have made it known that they will restrict abortion to the maximum extent allowed by federal courts.
The states with currently unconstitutional laws restricting abortion are mostly “red,” concentrated in the South and Midwest. However, these laws are also on the books in a few states carried by Joe Biden (Arizona, Michigan, New Mexico, and Wisconsin). All of these “purple” states (other than Arizona) currently have Democratic governors who might veto restrictive abortion legislation — but anything could happen in the 2022 midterms.
Fourteen “blue” states, plus the District of Columbia, have passed their own trigger laws establishing a state right to a pre-viability abortion (or later if there is a threat to a woman’s health) that would remain in effect if Roe is reversed. Oregon, Vermont, and D.C. have ensured the right to an abortion without legal interference throughout pregnancy. Presumably there are other states that would quickly move in this direction if state law is allowed to prevail.
Access to abortion would depend heavily on location and resources
The practical impact of repealing federal abortion rights would depend on how close women happen to live to clinics in states where it remains legal. But without question, the right to choose would be restricted, particularly for low-income women. According to a recent projection by the New York Times, “41 percent of women of childbearing age would see the nearest abortion clinic close, and the average distance they would have to travel to reach one would be 279 miles, up from 35 miles now.”
Even if the Supreme Court doesn’t immediately reverse Roe, it is very likely to reopen the door to so-called TRAP (Targeted Regulation of Abortion Providers) laws. These laws — which the Court rejected in its 2016 Whole Women’s Health v. Hellerstedt decision — aim to harass abortion clinics out of existence by imposing difficult-to-meet standards for abortion providers and their facilities. If the Supreme Court allows total abortion bans, some states may still choose this more indirect means of restricting abortions.
A legal wild card is whether the Supreme Court would allow states to impose restrictions on abortion-inducing medications and their availability via mail order, which could become a more frequent means of terminating pregnancies if clinics are closed or more difficult to reach.
Muddled public opinion on abortion could lead to inconsistent laws and political realignment
Public-opinion surveys have shown that a reasonably steady majority of Americans — around 60 percent — oppose a reversal of Roe. However, a lot of these ostensibly pro-choice Americans are open to restrictions on third- and even second-trimester abortions. That means they don’t all share the general view of abortion-rights advocates, who favor unrestricted abortion rights until fetal viability and more limited rights to late-term abortions in cases of medical necessity (which are quite rare). On the flip side of the equation, many self-identified “pro-life” Americans don’t follow the prevailing view of anti-abortion crusaders who want a total ban on “artificially” terminating pregnancies from the moment of conception (including, for many advocates, a ban on “abortifacient” birth-control methods like IUDs and the “morning-after pill”).
In areas where state government is not dominated by lawmakers with strong views on either side of the reproductive-rights debate, we could see internally inconsistent (and constantly shifting) policies taking shape. And that could lead to a raft of litigation, even if there is no federally established right to abortion.
You also have to wonder about the fate of people who hold minority positions within the two major parties on abortion policy in a post-Roe world. Today, the parties are almost completely polarized on this issue: In Washington in particular, but even in most states, anti-abortion Democrats and pro-choice Republicans have been all but hunted to extinction. But at the grassroots level, around one-fifth of Democrats dissent from the party position, and upwards of one-third of Republicans do as well. Could these dissenters impose some restraint on their party’s advocacy wing? Or, more importantly, might they realign themselves with the party that agrees with their stance on abortion? If so, the implications for our political system could be massive.
The politics of abortion could become vastly more intense on both sides of the issue
The hardest thing to project in a post-Roe America is how the return of abortion policy to the political sphere of government (the states, and in theory to Congress, which could set a preemptive federal policy) will change the political dynamics of the issue. Anti-abortion activists currently have the “intensity advantage,” since abortion is legal — but that could quickly change. If laws governing abortion are back on the table in Washington and in all 50 states, pro-choice policies will almost certainly become as potent a motivating force for Democrats as restrictions have become for Republicans, especially in “battleground states” whose direction post-Roe is not a foregone conclusion.
Politicians on both sides of the barricades are also sure to make the issue a top priority. If Roe is overturned, you can expect state legislatures in many if not most jurisdictions to incessantly consider new and fine-tuned legislation on reproductive rights. And if the Supreme Court retains some constitutional right to abortion alongside relaxed standards for state restrictions, you can add around-the-calendar litigation to around-the-clock political agitation. The mostly settled laws of the past 48 years will give way to constant and highly emotional turmoil.
There has long been an exotic school of thought among a handful of pro-choice advocates that reversing Roe would be good for the cause of reproductive rights by making the possibility of greater abortion restrictions vividly real, leading to more public mobilization. Perhaps that is what will ultimately happen. But the journey to an America where abortion rights are as taken for granted as they are in many other advanced countries will occur over a perilous road full of potholes and roadblocks, and at the risk of the life, health, and happiness of many people who literally cannot afford to be equanimous about the matter. Perhaps the Supreme Court will draw back from launching the country down that road. But it’s hardly a safe bet.