The Supreme Court’s decision in Dobbs is devastating to millions of people across the United States. Never before has the Court recognized a constitutional right, built an entire body of constitutional law and socio-legal expectations, only to eliminate that right half a century later — all to the vehement disapproval of (about) seventy percent (or at least, a large majority) of the country.
Let me preface this by saying that I will never have to face the gut-wrenching choice of whether to terminate a pregnancy. And truly, the moral question of when life begins, and when that “potential life” should take precedent over existing life, underlies this debate. That much is clear to both sides.
It is equally clear that many legal scholars — on both the left and the right — agree that Roe had a questionable principled basis in constitutional law. To paraphrase Professor Tribe, Roe was great legislation that I would have voted for as a legislator. In other words, the court just made up a test (which, by the way, none of the litigants had actually asked for, proposed, or even thought of).
Regardless of the legal failings in Roe, it is abundantly clear that nothing has changed since Casey was decided in the early 90’s. Roe/Casey stood as “super precedent” precisely because the debate surrounding those cases has always been so contentious and the Court spoke on the constitutional right to abortion, as established by Roe, for the last time in Casey — at least so we thought. For the overwhelming minority of people who oppose those holdings, there was no such thing as “settled constitutional law,” no matter how horrible the societal upheaval might be if overturned.
Indeed, while the law is often immune to the slings and arrows of popular sentiment, one of the few times it does matter is in the context of a stare decisis analysis. And in this case, the Roe/Casey/June Medical/Whole Women’s Health framework was largely working. And like any legal doctrine, there will always be flaws and conflicts that need to be sorted out from time to time.
But the only people who seriously wanted the Supreme Court to abrogate Roe altogether represent a small percentage of the country. Any unbiased, legitimate stare decisis analysis would have compelled the same results in Dobbs as we got in Casey.
But that didn’t happen. What we may have instead is the tyranny of the minority in some states. Several states may seek to simply limit the procedure in a thoughtful (albeit conservative way). But others, like Oklahoma, will strike no balance at all.
In Oklahoma, abortion is now banned outright, at any stage of pregnancy, except when “necessary to save the life of a pregnant woman in a medical emergency” or if the pregnancy is the result of rape, sexual assault or incest that has been reported to law enforcement.
This extends to cases like trisomy 18, or Edwards Syndrome, where a child will be born with little risk to the mother, and therefore can’t be aborted. But, the child will die within a few days, which will be lived in abject suffering and pain. (But sure, tell yourselves the “moral” thing to do is to let the infant be born anyway, to the child’s and parents’ unyielding torment.)
Oklahoma’s law quite literally treats women as A Handmaid’s Tale-esque child-bearing incubators — with virtually no independent legal rights — from the moment they conceive, to the moment they give birth. At which point, the state will disclaim any responsibility for assisting the mother with raising the potentially-unwanted child — instead, the policy will be slashing education budgets, refusing Medicaid expansion, cutting other welfare benefits, and constricting the social safety net. (We have very different understandings of what being “pro-life” means.)
But at the end of the day, the most simple explanation for why Roe was overturned is probably the best one. Six Supreme Court Justices finally did what conservatives legal scholars have been saying should happen since the day Roe was decided. They’re the dog that finally caught the car.
Unfortunately, the Supreme Court dropped Dobbs at the most politically divided time since the Civil War. This is a gravely unpopular decision that is fundamentally different than the other precedents they cited as proof that sometimes cases are properly overruled — failing to mention all of them granted new constitutional rights, and did not take them away.
At the end of the day, I don’t pretend to know what this country will look like ten years from now. But if I had to guess — conservative states will look a whole lot poorer, unhealthy, with underfunded social safety nets, and quite a bit different demographically. And liberal states will still be cowering to a woke mob complaining about abortion not being a “women’s rights” issue, but rather one affecting “people who get pregnant,” and calling those who disagree “transphobic.”
I hope that as a country, we can find a way to heal and move forward together in what will become a fractured and contentious political, societal, and legal landscape. But it looks like it will be a long journey ahead.
the irked moderate 