Will the Supreme Court overturn Roe v. Wade? As the justices prepare to hear oral arguments on Dec. 1 in the biggest abortion case in decades, that is the understandable question on everyone’s mind. It’s also a misleading one.
Yes, Roe could possibly meet its demise when the court decides Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy. After all, outlawing abortion in America has been an animating object of the conservative movement for nearly half a century. But the Supreme Court never had a reliably anti-choice majority to pull it off. Now, largely thanks to the engineering of Senator Mitch McConnell, the court is stacked with a supermajority of conservative justices, several of whom surely must be tempted to finish the job they were put on the court to do.
The fact that the Dobbs case made it to the court in the first place is reason enough for alarm: Many states have passed abortion bans similar to Mississippi’s that have been struck down because they are obviously unconstitutional in light of Roe v. Wade and subsequent cases. That the Mississippi law hasn’t met the same fate strongly suggests a confidence among conservative justices that they finally have the votes to end Roe for good. A similar confidence — not to mention a blithe indifference to women’s civil liberties — was reflected in the Supreme Court’s recent refusal to summarily strike down a new Texas law that effectively bans most abortions in the state.
As the justices are well aware, however, categorically eliminating a constitutional right that tens of millions of women have counted on, and which, according to a 2019 poll, more than three-quarters of Americans support upholding in some form, would invite an enormous social and political backlash that could end up doing damage to the very causes they hold dear.
The more likely outcome — for this term, at least — is not an outright reversal of Roe but a rerun of a show Americans have been watching for the past 30 years: a ruling that preserves the right to abortion in name while making the exercise of that right ever more difficult, if not impossible, in practice.
That’s why the most pressing issue in the Dobbs case is not the legal response of the court but the political response of a consistent majority of Americans who agree that a woman has the right to control what happens inside her own body.
The last time abortion rights faced a threat as serious as this one was in 1992, when the Supreme Court nearly overturned Roe v. Wade before three justices joined together to preserve its core. In doing so, however, the court introduced a new and more lenient standard for state laws that restrict access to abortions — the “undue burden” test. Under that test, restrictions on abortion before the point of fetal viability — currently about 24 weeks — are valid unless they place “substantial obstacles in the path of a woman seeking an abortion.”
Conservative state lawmakers saw this as an opportunity and quickly littered that path with hundreds of restrictions — for instance, forcing women to undergo a transvaginal ultrasound and view images of the fetus, mandating waiting periods before having an abortion and requiring that minors obtain parental consent. In some cases the courts have struck those down for being too burdensome, but many more have survived. The sheer volume of restrictions, close to 500 passed in the past decade alone, means that women trying to exercise their constitutional right to terminate a pregnancy must be constantly on guard, never assured that they will be legally allowed to control what happens inside their bodies. Meanwhile, for the most vulnerable women — those who are poor or live in rural areas far from any clinics — true reproductive freedom slips further and further out of reach.
So what happens next? The first step is acceptance — specifically, accepting that such a conservative Supreme Court is no longer going to protect reproductive freedom but will instead undermine it. The next step is to shift the focus away from the courts and onto electoral politics — by translating the American public’s consistent majority support for abortion rights into electoral victories at all levels of government, but especially in the states, where nearly all laws around reproductive rights get made.
Right now, thanks in part to extreme partisan gerrymanders, Republicans enjoy control of government in 23 states, allowing them to pass increasingly aggressive restrictions. The lawmakers who so eagerly pass these bills claim they are about protecting life, but if that were their true motive, they would also be striving to provide easier access to contraception — thus reducing the need for abortions in the first place — and expanding government assistance to families with babies and young children. Most don’t, of course.
If this is a dark time for reproductive freedom in America, it is also one of opportunity. Keep in mind that the anti-choice movement achieved as much as it did because it has had a clear enemy: Roe v. Wade and the reaffirmation of that ruling. In contrast, the abortion-rights movement has mostly played defense, believing that the courts would serve as a backstop. Now the tables are turning. Conservatives control the Supreme Court, and they will likely win many victories there in coming years. But they might soon tire of all that winning, for just as success breeds complacency, defeat begets urgency.
This moment is also an opportunity to recast the fight over abortion and reproductive rights generally. It should be centered on women’s equality and liberty, not on their privacy, the right on which the Roe decision was grounded. The problem with that rationale, which was conjured by a court consisting of nine older men, is not only that it does not appear explicitly in the Constitution, but also that it carries insinuations of secrecy and even shame. That’s a rickety foundation for such a fundamental right. It is far harder to refute calls for equality and liberty, as evidenced by the struggles and successes of the L.G.B.T.Q. movement.
That movement, which played out in roughly the same time period as the fight for abortion rights, is in large part about pride. Not unlike the anti-abortion movement, its earliest breakthroughs were not in courts of law but in the court of public opinion, which influences how the Supreme Court rules more than any justice wants to admit.
In the end, this is how reproductive freedom must be saved — through a concerted political campaign that harnesses public support with a message of openness and pride, and a focus on women’s equality and bodily autonomy. It needs to encompass not just the right to end a pregnancy but also the right not to get pregnant in the first place by having easy access to contraception. This shift may not happen tomorrow, but it won’t happen at all unless voters start coming out and choosing representatives who support reproductive freedom, and convert that support into policy.
The Supreme Court will rule on Dobbs, but that will not be the end of the story. This story, like most movements for greater equality throughout American history, is not ultimately about the judiciary’s interpretation of the Constitution. It is about the impact of large-scale social movements, and of regular people and their power to change the way we think about — and defend — our most fundamental rights.