Abstract
Decades of mobilization preceded the Supreme Court’s overturning of Roe v. Wade. Yet while the outcome of Dobbs v. Jackson Women’s Health Organization was highly predictable, the decision nonetheless came as a shock to the political and legal systems—and, based on the justices’ first encounters with the post-Dobbs world during the 2023–2024 term, it was perhaps even a shock to the court itself. Women played little more than a walk-on role both in the recognition of a constitutional right to abortion (a decision essentially about doctors) and in the repudiation of that right (a decision essentially about fetuses). But now, in the half of the country where even medically necessary abortion is unavailable after Dobbs, concerns for pregnant women and their fate dominate, and the justices appear no longer so certain that they are finished with abortion. Their work, in fact, may be just beginning.
“They did it because they could. It was as simple as that.” My angry judgment on the Supreme Court’s reversal of Roe v. Wade (1973) appeared on The New York Times website hours after the fact, on June 24, 2022, under the title “A Requiem for the Supreme Court” (Greenhouse 2022). As a straightforward description, there was no doubting my essay’s accuracy: A bare but sufficient majority of justices, in an opinion that contained many conclusory assertions but surprisingly little law, had just repudiated the constitutional basis for nearly half a century of American women’s reproductive autonomy. Roe, Justice Samuel Alito declared in the majority opinion, “was egregiously wrong from the start” (Dobbs v. Jackson Women’s Health Organization 2022, at 2243).
As simple as that? That was certainly how it looked. Consider that not quite six years earlier, in the second debate of the 2016 presidential campaign, then-candidate Donald Trump had predicted confidently that if he were elected, his Supreme Court appointments would result in overturning Roe v. Wade “automatically” (Commission on Presidential Debates 2016). Amy Coney Barrett, the last of Trump’s three Supreme Court appointees, following Neil Gorsuch and Brett Kavanaugh, took her seat in October 2020. Four months earlier, with Justice Ruth Bader Ginsburg still sitting, the court had overturned a Louisiana law that required any doctor who performed abortions to have (all but unattainable) admitting privileges at a local hospital. The majority in that case, June Medical Services v. Russo (2020), declared itself bound by recent precedent to invalidate the requirement. Soon enough, that majority was gone and so was Roe.
From a broader perspective, of course, Dobbs was not quite “as simple as that.” It was preceded by decades of mobilization and counter-mobilization, a struggle over abortion that both preceded Roe and enveloped it, shape-shifting in synchrony with the country’s politics and the court’s changing membership. While a detailed account of those decades is outside the scope of this article, it bears saying, at a time when ungendered “patients” and “pregnant persons” have supplanted “women” in conversation about reproduction, that the debate over abortion both fueled and was in turn fueled by a deeper debate over women’s role in society. (An estimated 0.3 percent of abortions are obtained by transgender men [Chiu et al. 2023].)
Strikingly, women played only walk-on roles in both the decision that established the right to abortion and the decision 49 years later that erased it. In Roe, an all-male court was principally focused on the right of doctors to practice good medicine without risking prison. In Dobbs, buried beneath multiple layers of inaccurate law-office history was the concern shared by five justices, all raised in the Catholic church, for the fetus. (As Aaron Tang [2023] pointed out in an article published the year after Dobbs, the majority both exaggerated the number of states that had criminalized abortion during the nineteenth century [1128] and mischaracterized some of the actual statutes as comprehensive abortion bans [1149–1150].)
But whether acknowledged or not, women have always been at the heart of the abortion debate (Kolbert and Kay 2021, 6–19). So, it is an irony of the post-Dobbs world that women are more visibly at the center of the abortion debate now than they have been for many years (and perhaps ever)—not so much for their choices, free or constrained, about pregnancy, but for the threat posed to their health and to their very lives by the abortion bans that Dobbs unleashed. This effect of Dobbs—relegating the fate of actual women to capricious state legislators and terrified doctors—was, like the overturning of Roe itself, at once predictable and shocking. What the future holds for access to abortion in America now depends on how people—voters, politicians, judges, perhaps even justices—respond to the new realities of the post-Dobbs world. The November 5, 2024, election sent a confusing message. Measures to protect or expand abortion rights were on the ballot in 10 states and received majority support in eight. (The proposed constitutional amendment in Florida received 57 percent of the vote but nonetheless failed due to the state’s 60 percent requirement.) Confounding expectations that the Democratic ticket would benefit from having abortion on the ballot, a majority of voters in five of the eight states chose Trump even as they voted to protect abortion rights. 1
While Dobbs resulted from decades of struggle, it is in no sense that struggle’s culmination. Rather than closing the book, Dobbs opened a new chapter, as the justices certainly understood, even if they did not foresee the full political and social implications of their action. Justice Clarence Thomas, for his part, declared in his concurring opinion that it was now time to reconsider the “demonstrably erroneous” precedents that established constitutional rights to contraception, homosexual intimacy, and same-sex marriage (Dobbs 2022, at 2301). That explicit invitation prompted an alarmed Justice Kavanaugh to insist in his own concurring opinion that “overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents” (Dobbs 2022, at 2309, emphasis in original). Chief Justice John Roberts, refusing to sign Alito’s opinion, threw down a warning of the “serious jolt to the legal system” that lay ahead; his separate concurrence argued that the court should uphold Mississippi’s ban on abortion after 15 weeks of pregnancy without going further to erase the right to abortion itself. “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” he wrote (Dobbs 2022, at 2311, emphasis in original). His warning quickly proved correct. Beyond scrambling the politics of abortion at the state and national level, Dobbs administered a severe and perhaps unprecedented blow to the Supreme Court’s legitimacy in the eyes of the American public. (See J. Gibson, this volume, 260–261: “The decision may have produced the largest knock on court legitimacy that has ever been documented.”)
The plunge in public confidence in the court was immediate. In fact, it preceded the official release of the Dobbs decision: Six weeks earlier, on May 2, Politico had stunned the country by publishing an article based on a purported leak of Alito’s draft opinion (Gerstein and Ward 2022). The chief justice confirmed the draft’s authenticity the following day (Howe 2022). A Gallup poll conducted during the first weeks of June showed an 11-point drop in confidence in the court from a year earlier, to 25 percent, described as “a new low in Gallup’s nearly 50-year trend” (Jones 2022). The Gallup report, issued June 23, 2022 (the day before the court handed down Dobbs), noted that while other institutions had also suffered declines in public confidence during the past year, the Supreme Court’s drop was “roughly double what it is for most institutions that experienced a decline” (Jones 2022). In the interval between the leak and the release of the decision, 58 percent of respondents had told Gallup they did not want to see Roe overturned (Brenan 2022).
Those data make all the more striking a pair of sentences toward the end of Alito’s Dobbs opinion. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” Alito wrote, referring to the 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), in which the court, to the surprise of many, had reaffirmed the constitutional right to abortion. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision” (Dobbs 2022, at 2279). Those sentences occupied a prominent position in the penultimate paragraph of the leaked draft. They were less visible in the ultimate opinion, since Alito added a lengthy section to the draft to respond to Roberts and to the dissent. But what was remarkable is that these sentences remained in the final opinion without change.
“We do not pretend to know”? Really? From the public response to the draft, the justices didn’t have to guess. In fact, the court was acutely aware of the fury that news of the impending decision had generated and had taken the unprecedented step of erecting an unscalable and visually forbidding eight-foot, black metal fence to protect its property from angry demonstrators (Henninger 2022).
“No authority to let that knowledge influence our decision”? Justice Elena Kagan, a dissenter in Dobbs, had a different message, one more consonant with how scholars understand the elusive relationship between the Supreme Court and the American public. Speaking at a federal judicial conference less than a month after the decision, she disclaimed reference to any particular ruling. “But if, over time, the court loses all connection with the public and the public sentiment,” the former dean of Harvard Law School told the hundreds of judges and lawyers in attendance, “that’s a dangerous thing for democracy” (Ehli and Barnes 2022).
Perhaps Alito really had no idea what message the public was trying to send. But Roberts understood. (See Smith, this volume.) He had, after all, issued that warning, after reportedly having tried and failed to peel Kavanaugh’s vote away from Alito (Biskupic 2022). And it’s safe to assume that there was something else John Roberts knew. His name was on the door. It was, after all, the Roberts court. Whatever else the Supreme Court accomplished during the rest of his time as its chief justice, the overturning of Roe v. Wade would be his legacy. It would be the Dobbs court.
The Dobbs Court in Perspective
In considering the birth and death of Roe v. Wade, two elements stand out, one external to the Supreme Court and the other internal. Both can be plotted on a notional graph that spans half a century.
The external element is public opinion favoring the right to abortion, both before Roe and after. The persistence of public support might be visualized along our notional graph’s horizontal axis as a straight line, unbroken across the decades. By contrast, the internal element, the court’s own support for the precedent it established in 1973, might be seen as a sloping line beginning in the upper left with the 7-to-2 vote in Roe and descending across time before flattening out and disappearing. For understanding the Dobbs court, the challenge lies in reconciling these two essential but disparate elements.
Polling on the question of abortion’s decriminalization began in the late 1960s as state legislatures began to enact reform proposals, several of which went as far as the complete repeal of century-old criminal abortion laws. In the summer of 1972, George Gallup’s syndicated column reported that 64 percent of Americans believed that “abortion should be a matter solely between a woman and her physician” (Gallup 1972). The poll showed majorities for decriminalization across political and demographic groups including, notably, 56 percent of Catholics and 68 percent of Republicans (Greenhouse and Siegel 2019, 61). Justice Harry Blackmun, working at the time on the draft that would become the Roe majority opinion, had a copy of the Gallup article, clipped from The Washington Post, in his file on the case (Greenhouse 2005, 91).
Over time, as each of the two political parties made a position on abortion an essential part of its public identity and Americans sorted themselves accordingly, Republican support for the right to abortion shrank and Democratic support escalated. On the eve of Dobbs, 80 percent of Democrats and only 31 percent of Republicans said they did not want the court to overturn Roe, a partisan gap Gallup deemed the “most polarized ever.” Taken as a whole, 58 percent of Americans wanted to retain the right to abortion as of May 2022, a result unchanged over more than three decades (Brenan 2022).
Someone coming upon Alito’s Dobbs opinion without context or knowledge of history might be forgiven for assuming that both Roe and Casey were liberal deviations conjured by justices intent on twisting the Constitution to fit their policy goal. In fact, the outcomes in both cases were controlled by Republican-appointed justices. The majority in Roe included three of Richard Nixon’s four Supreme Court appointees (all but William Rehnquist) and six of the seven Republican-appointed justices then serving (the lone Democratic-appointed justice in the majority was Thurgood Marshall.) And in Casey 19 years later, all five of the justices who reaffirmed the right to abortion and refused the invitation of President George H. W. Bush’s administration to overturn Roe were Republican appointees, including one, David Souter, nominated by Bush.
In other words, those two “egregiously” wrong decisions were not the products of a liberal departure from mainstream constitutional thought. Rather, they reflected and, it is safe to say, defined the mainstream of their day. The defeat of Robert Bork’s Supreme Court nomination by a bipartisan coalition of senators in 1987 was due in no small measure to the public’s understanding that he would vote to overturn Roe. “Out of the mainstream” was the label that Bork’s opponents attached to the man—and from the perspective of 1987, that was accurate. Clearly, what changed between Roe and Dobbs was not the Constitution. It was the court itself.
That abortion would be a significant issue in confirmation to the Supreme Court would have come as a shock to the 1975 Senate, which confirmed John Paul Stevens by a vote of 98 to 0 without asking him a single question about abortion. Stevens, the first new justice to join the court since Roe, was named by a Republican president, Gerald Ford, to succeed the very liberal William O. Douglas, a member of the Roe majority. In context, it was unremarkable that Roe did not even play a walk-on role in the confirmation of the justice who eventually became one of the court’s strongest supporters of abortion rights (Greenhouse 2010). For one thing, the Roe majority of barely three years earlier appeared secure in late 1975. Stevens had expressed no view on abortion or Roe, but no matter what his view turned out to be, he would not be in a position to change the status quo. For another, the leadership of the Republican party had not yet coalesced around an anti-Roe or anti-abortion position. While strategists had begun a deliberate campaign to attract evangelical and Catholic voters to the Republican Party under a “family values” banner that included opposition to abortion, partisan realignment over the abortion issue was still years in the future and, as Gallup had found, most self-identified Republicans still favored abortion rights (Greenhouse and Siegel 2011, 2059–2071). It was not until 1980, with the nomination of Ronald Reagan, that the party adopted a platform that called for “the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life” (Republican Party Platform 1980).
In the years since Roe, there have been 16 appointments to the Supreme Court, 11 by Republican presidents and five by Democrats. The first five Republican-named justices are no longer serving. The six who remain are all the product of abortion-fueled politics, with the possible exception of John Roberts. Roberts, a reliable conservative with a robust record of opposition to the Voting Rights Act, was not identified with the anti-abortion movement. Questions about abortion played only a minor role in the run-up to his 78-to-22 Senate confirmation in 2005. But for other Republican nominees, abortion loomed large. Each was pressed to declare respect for Roe as a precedent, and each did, more or less. Five of those Republican-appointed justices comprised the Dobbs majority.
Plotting the trajectory from Roe to Dobbs on our notional graph illuminates the power of abortion politics. Justice Sandra Day O’Connor joined the court in 1981 as President Ronald Reagan’s first Supreme Court appointee, replacing Justice Potter Stewart, who had voted with the Roe majority. Reagan, who had made a campaign promise to appoint the first woman to the court, had been assured that she was reliable on abortion. O’Connor’s first encounter with the issue came two years later in a case from Akron, Ohio. The city had adopted several regulations, including a waiting period, aimed at deterring women from choosing abortion. When the majority declared the regulations unconstitutional, O’Connor dissented with an opinion that was sharply critical of Roe. No longer 7 to 2 in favor of the right to abortion, the margin had suddenly shrunk to 6 to 3 (City of Akron v. Akron Center for Reproductive Health 1983).
Three years later, in a case from Pennsylvania, the court struck down another set of restrictions similar to those the court had disallowed in the Akron case. Now support for the Roe framework shrank to 5 to 4 due to the defection of Chief Justice Warren Burger, an equivocal member of the Roe majority who now called for the court to reconsider the precedent (Thornburgh v. American College of Obstetricians and Gynecologists 1986).
Justice Lewis Powell, one of Roe’s strongest original supporters, retired the next year. After the defeat of his designated successor, Robert Bork, the seat went to Anthony Kennedy. In a case from Missouri in 1989, Kennedy joined his fellow Reagan appointees Antonin Scalia and Sandra O’Connor in voting to uphold a set of anti-abortion regulations by a vote of 5 to 4. Roe remained the law of the land only because O’Connor, writing separately, limited her vote to upholding the regulations at issue and refused to go further to attack Roe itself. Still, that left only four justices who could be counted on to support Roe in the future cases that were sure to come. As Blackmun warned in dissent, “a chill wind blows” (Webster v. Reproductive Health Services 1989, at 560).
By the time Planned Parenthood v. Casey reached the court in late 1991, two more members of the original Roe majority, William Brennan and Thurgood Marshall, had retired and two appointees of President George H. W. Bush, Souter and Thomas, had taken their places. It seemed highly unlikely that Roe would survive. But it did, barely, with O’Connor, Kennedy, and Souter joining Stevens and Blackmun in an opinion that discarded much of Roe and reformulated the right to abortion. The right was no longer deemed “fundamental.” A state could now take steps to protect the fetus throughout pregnancy as long it stopped short of placing an “undue burden” on a woman seeking abortion. What kind of burden would be deemed “undue”? The answer would be up to judges and justices, current and future.
Sandra O’Connor retired in 2006 and was succeeded by Samuel Alito in what was surely one of the most consequential successions in modern Supreme Court history. Alito’s antipathy to Roe was well known and the Judiciary Committee hearing that preceded his 58-to-42 Senate confirmation was contentious. Within a year, with Alito in O’Connor’s place, the court reversed course in a controversy over a later-term abortion procedure graphically labeled by opponents as “partial-birth abortion.” In 2000, by a vote of 5 to 4 with O’Connor in the majority, the court had declared Nebraska’s law that prohibited the procedure to be an undue burden. (Stenberg v. Carhart 2000). Seven years later, with the recently confirmed Alito in the majority, the court voted 5 to 4 to uphold a nearly identical federal prohibition, the Partial-Birth Abortion Ban Act (Gonzales v. Carhart 2007).
The result of Casey and its “undue burden” test was a flood of what came to be known as TRAP laws, an acronym for “targeted regulation of abortion providers.” These were laws that imposed on abortion providers regulations that did not apply to other medical procedures of equivalent or even greater risk. States justified these regulations on the ground of protecting women’s health, although there was no evidence that they accomplished such a purpose. What the TRAP laws actually did was hollow out the infrastructure that made abortion access possible; dozens of clinics closed when their owners could not afford to retrofit them as mini-hospitals, a common TRAP law requirement. The requirement for doctors to have admitting privileges in local hospitals was particularly devastating. Hospitals commonly refused to grant such privileges, either because of anti-abortion sentiment or because so few abortion patients ever need hospital care that doctors could not guarantee that they would provide the hospital with the requisite number of patients (Cohen and Joffe 2020, 60–65; Greenhouse and Siegel 2016, 1449–1458).
The issue reached the court in Whole Woman’s Health v. Hellerstedt (2016), a case challenging an admitting-privileges requirement in Texas. Justice Scalia had died just weeks before the March 2016 argument. Voting 5 to 3, the short-handed court struck down the requirement as an undue burden. This was the precedent that governed the outcome four years later in the June Medical case, in which the court invalidated Louisiana’s nearly identical admitting-privileges requirement. In that second case, the two recently appointed justices, Gorsuch and Kavanaugh, voted in dissent along with Alito and Thomas. That four justices would have upheld the Louisiana law despite a recent precedent directly on point was a sign of how little weight precedent would carry in a court in the process of being reshaped.
The court issued June Medical on June 29, 2020. Two weeks earlier, to little public notice, a new appeal had reached the court, filed by Attorney General Lynn Fitch of Mississippi under the name Dobbs v. Jackson Women’s Health Organization. The tense, pandemic-disrupted 2019–2020 term was coming to an end. Consideration of the new case would have to wait.
Justice Ginsburg, who had cast one of her final votes as a member of the June Medical majority, died in September, shortly before the new term opened. On October 26, over the opposition of every Democratic senator, the Senate confirmed Amy Coney Barrett to Ginsburg’s seat.
Life After Dobbs
During the first full year after Dobbs, 171,000 women crossed state lines to receive abortions, amounting to nearly one-fifth of all abortions (Escobar et al. 2024). Almost overnight, the United States had become a nation of refugees searching for reproductive health care. By the decision’s first anniversary in June 2023, abortion had been banned in 13 states and rendered effectively unavailable in seven others, where severe restrictions stopped short of a complete ban. That number would grow as the months passed. States where abortion was still legal in 2023 averaged 26 percent more abortions than in 2022, an overall number that obscured the huge increases in states bordering those with newly imposed bans. New Mexico, drawing women across its borders from Texas and Oklahoma, experienced a 257 percent increase in abortions. But despite the obstacles, the number of abortions actually increased nationally in 2023, up by an estimated 11 percent since 2020 to just over one million, according to the Guttmacher Institute, which conducts a survey of abortion providers every three years (Maddow-Zimet and C. Gibson 2024). Abortions had declined for three decades before the trend was reversed in 2020; the number had not been as high as one million since 2012.
Reasons for the increase are no doubt complex. In the wake of Dobbs, the Biden administration, having earlier lifted a long-standing requirement for doctors to prescribe abortion pills in person, took further steps to assure access to medication abortion (Food and Drug Administration [FDA] n.d.; White House 2023). Abortion by means of the two-pill regimen approved by the FDA now accounts for nearly two-thirds of all abortions, with prescriptions by telemedicine accounting for a growing share.
Whatever the reasons for the increased number, those who cheered Dobbs have responded with surprise and dismay to what quickly amounted to the emerging political landscape. As of mid-2024, the side favoring abortion rights had prevailed in every electoral contest, including in such conservative states as Kansas, Ohio, and Montana (Ballotpedia 2024). The 2024 Republican Party platform dropped its long-standing call for a national abortion ban, instead emphasizing that abortion policy was now in the hands of the states (2024 Republican Party Platform 2024). Following that development, one prominent conservative complained in The New York Times that while “getting rid of Roe was a tremendous legal victory for conservatives . . . if it results in higher abortion rates, conservative leaders expressing support for the abortion pill and the continued diminishing of pro-life influence on the Republican Party, it will have cost a bitterly high price” (Brown 2024).
Even so, a conundrum remains. Despite public opinion and behavior, legal abortion remains unavailable in states where collectively one in three American women of childbearing age lives (Kitchener et al. 2022). In Iowa, for example, where abortion pre-Dobbs had been available up to 22 weeks of pregnancy, a Des Moines Register poll indicated 61 percent support for the position that abortion should be legal in “all or most cases” (Akin 2023). Yet in 2023, the Republican-led legislature enacted an abortion ban at six weeks of pregnancy, a date by which many women either are unaware of a pregnancy or can’t organize their affairs quickly enough to arrange for an abortion within the allowed time frame. In June 2024, the state’s Supreme Court upheld the law, rejecting a challenge based on the Iowa constitution. Governor Kim Reynolds, a Republican who had championed the law, praised the state court’s ruling as “a victory for life” (Gowen 2024).
What could account for such a dramatic disconnect between public opinion and political outcome? One obvious answer is the capture of state legislatures by Republicans with ties to evangelical and other Christian communities. In the November 2010 election cycle, midway through President Obama’s first term, Democrats lost an unprecedented 720 state legislative seats, resulting in Republican control of 26 state legislatures (Greenfield 2021). Many of the newly elected Republican legislators were allied with anti-abortion forces. Taking advantage of the opening that Casey had provided, the newly configured legislatures began to pass TRAP laws at an accelerating rate. By 2013, 27 states had enacted TRAP laws placing onerous requirements on clinics and doctors (Gold and Nash 2013). The gains in 2010 put Republican-led legislatures in control of the redistricting cycle that followed that year’s Census, and these legislatures used their power to anchor Republican majorities for at least the following decade.
The result has been a legislative lockup of the sort that stymied abortion reform in the years before Roe. Recall that there were clear majorities for abortion’s decriminalization in the late 1960s and early 1970s. Reformers had begun to score gains in several state legislatures. But after 1970, reform efforts came to an abrupt halt as an alarmed and newly mobilized Catholic Church put intense pressure on legislators. Buckling under the pressure, the New York legislature, which had repealed the state’s nineteenth-century criminal abortion law in 1970, repealed the repeal two years later. Only Governor Nelson Rockefeller’s veto preserved the 1970 repeal and kept New York from reverting to its nineteenth-century criminal abortion statute. The failure of reform by means of legislation and popular referendums was what drove reformers to the courts (Greenhouse and Siegel 2019). (Ruth Bader Ginsburg’s view that the Supreme Court in Roe interrupted legislative momentum for change that would have placed the right to abortion on a more stable basis has often been cited by abortion opponents [Ginsburg 1985, 379–380]. Although she held to this belief until the end of her life, it was refuted by what actually happened on the ground during the pre-Roe period.)
In addition to legislative lockup, there is another similarity between the Roe era and today: Support for the right to abortion increased in the aftermath of both Roe and Dobbs. The notion that Roe caused an immediate backlash is so prevalent that people are often surprised to learn that three major surveys (Harris, Field, and NORC) conducted in the immediate aftermath of the decision showed “a remarkable liberalization of abortion attitudes,” according to an article that reviewed all three surveys and concluded that Roe may have had “an immediate legitimating effect on public opinion” (Arney and Trescher 1976, 124). Post-Dobbs, the Associated Press-NORC survey reported in July 2024 that 61 percent of adults “want their state to allow abortion for any reason,” up from 49 percent in June 2021. “Support for ‘legal for any reason’ increased across the political spectrum,” the survey report concluded (Associated Press and NORC [AP-NORC] 2024). Beginning in the immediate aftermath of Dobbs in the summer of 2022, other polls have consistently shown similar results. As James Gibson has written, the public response to Dobbs presents a serious challenge to legitimacy theory and specifically to the concept of positivity bias, raising the prospect of “a court crisis of the magnitude of the 1930s” (J. Gibson 2024a, 1054).
Clearly, Dobbs made people pay attention to the Supreme Court to a degree that few other court decisions have matched. The Trump immunity ruling at the end of the 2023–2024 term was headline news, but it was not a decision that most people could tie to their daily lives. The availability of abortion, by contrast, is highly relevant to most women of reproductive age, and public opinion experts have tied the continuing impact of Dobbs to the fact that the importance of the subject itself won’t fade. The PerryUndem Research firm reported in the spring of 2024 that news accounts of women with troubled pregnancies being denied abortion care began to “break through” in early 2023 and have garnered a growing share of public attention. In September 2023, 35 percent of respondents said they had heard about women who had to leave their home state to receive an abortion. Six months later, that proportion had grown to 46 percent. Among female registered voters between the ages of 18 and 44, 68 percent said they could envision a scenario in which abortion might be their “best option,” and 43 percent said that Dobbs had made them think about their own risk of death if they got pregnant. The polling firm called these responses “profound” (PerryUndem Research 2024).
It is jarring but not hard to understand why healthy young women would worry about pregnancy as a potential death sentence. Women who actually did come near death when doctors and hospitals refused to terminate severely compromised pregnancies for fear of criminal prosecution have been telling their stories publicly, sometimes brought forward by abortion-rights organizations litigating against a state ban. The New York Times reported in June 2024 on a 39-year-old mother of two from Idaho, Nicole Miller, who was hemorrhaging at 20 weeks of pregnancy and who had to be airlifted to Utah after an emergency room doctor “told me he wasn’t willing to risk his 20-year career” (Zernike 2024). National media paid widespread attention to the case of a woman from Dallas, Kate Cox, who was carrying a fetus with a fatal condition in a pregnancy that threatened her own health and future fertility. She left Texas for an abortion after the Texas attorney general appealed a state court decision that had found her qualified for the narrow health exception to the state’s abortion ban; the Texas Supreme Court blocked the lower court’s decision and later overturned it (Kitchener and Vazquez 2023). (Of course, most women who choose to terminate a pregnancy do so not because of a health crisis but because for a variety of personal reasons, they feel unprepared for motherhood at that particular time; the well-known Turnaway Study examined the outcome when such women are denied abortions, but their individual stories don’t make compelling news [Biggs et al. 2013].)
Could history really be repeating itself so precisely? In 1962, a young woman named Sherri Chessen Finkbine, a mother of four and the prominent host of a popular children’s television program in Phoenix, was pregnant with a much-wanted fifth child. She took a sleeping pill that her husband had brought back from a business trip to Europe, where it was widely marketed. She learned too late that the pill contained thalidomide, which when taken in early pregnancy caused devastating harm to the developing fetus. With no option in the United States for legally terminating the pregnancy, she went to Sweden for an abortion. The episode was widely publicized and is credited today with having started one of the earliest public conversations, even in the country’s heartland, about the ubiquitous regime of criminal abortion laws. “Here is a need for common sense,” the Tulsa Tribune wrote in an editorial. Growing numbers of Americans agreed (Greenhouse 2023). Eleven years later, abortion was legal in every state.
The Court After Dobbs
Despite all the signs, many Americans had not anticipated Dobbs almost until the last minute, when the leak of Alito’s draft opinion shocked them into awareness. “Roe loomed so large in American life that it was almost impossible to imagine that it could disappear,” the authors of The Fall of Roe observed in their account of the multiyear campaign that led to that moment. Democratic politicians had warned in every election cycle of what voting for Republicans could mean for abortion rights, they noted, “But truthfully, almost no politician, strategist, or official on either side of the aisle really believed Roe would fall” (Dias and Lerer 2024, 61). (In January 2006, immediately following Alito’s confrontational Senate Judiciary Committee confirmation hearing, Gallup asked whether people expected the nominee to vote to overturn Roe v. Wade. Alito’s antipathy to Roe was beyond dispute, as memos he wrote while working on an abortion case in the Solicitor General’s office made clear when they came to light during the confirmation process [American Civil Liberties Union 2005, 5–10]. But only 34 percent of Gallup’s respondents said they thought Alito would vote to overturn Roe [Gallup, n.d.].)
A decade-long study of public perceptions of the Supreme Court’s ideological orientation showed that on the eve of Dobbs, there was little appreciation of how conservative the court had become. Based on three nationally representative surveys between 2010 and 2021, the study’s conclusion was that “many Americans underestimate the court’s conservative lean, with Democrats particularly likely to peg the court as more liberal than it actually is.” In fact, the authors wrote that as of late 2021, the court had moved “to the ideological right of roughly three quarters of all Americans” and “sharply to the right of public opinion” (Jessee et al. 2022).
That the public failed to grasp that evolution as it was occurring may have provided the court with a measure of insulation, sustaining the gentle sea of diffuse legitimacy on which the court has customarily floated. (In July 2020, with Gorsuch and Kavanaugh already on the court, public approval was a robust 58 percent, with 38 percent disapproving, according to Gallup. After Dobbs, in September 2022, the result was almost exactly the opposite: 58 percent disapproval and 38 percent approval (Gallup, n.d.). Admittedly, the notion that ignorance equals insulation is contrary to most scholarship on public attitudes toward the Supreme Court. Conventionally, it has been higher-knowledge individuals, those with greater understanding of the structure and values of American government, who have been found to hold the court in the highest esteem. But new scholarship suggests this may no longer be the case. One recent study concluded that “knowledge of the court, and support for key democratic values, no longer protect the court after Dobbs in the way they once did.” Based on post-Dobbs surveys that showed dramatic partisan polarization in how people were responding to the court, this study concluded that partisanship was now the primary determinant of attitudes. “For Democrats, knowledge of the court no longer predicted legitimacy, and instead, all Democrats—regardless of knowledge—saw the court as less legitimate” (Levendusky et al. 2024).
If Dobbs was a wake-up call for the public, the question arises whether the decision’s aftermath has had a similar, unexpected impact on any of the justices who voted in the majority. While there is not enough evidence to suggest actual buyer’s remorse, the court’s response to one of the two abortion-related cases to reach it during the 2023–2024 term is at least suggestive.
Moyle v. United States (2024) concerned a clash between Idaho’s abortion ban and a federal law that requires hospitals to provide treatment necessary to stabilize the condition of patients who arrive in the emergency room in acute medical need. Idaho’s Defense of Life Act bans all abortions except those necessary to save the life of a pregnant woman or to terminate pregnancies due to rape or incest. Because emergency abortions are sometimes necessary to preserve a woman’s health or future fertility, even if her life is not in immediate peril, the federal government sued Idaho to require compliance with the law, the Emergency Medical Treatment and Labor Act in the abortion context.
To condense the complex history of the case, the Federal District Court in Idaho had granted an injunction that barred the state from enforcing its law while the government’s lawsuit proceeded. The federal appeals court declined Idaho’s request to lift the injunction, instead setting an accelerated date to hear the state’s appeal. At that point, Idaho’s attorney general, bypassing the appeals court and its scheduled argument, brought the case to the Supreme Court as an emergency motion, asking the justices to lift the injunction and put the state law back in force. It seemed highly unlikely that the Supreme Court would intervene at that point, given the absence of an appellate ruling and the lack of a record that could clarify how the state and federal laws actually interacted. Nonetheless, on January 5, 2024, the justices lifted the injunction, putting Idaho’s abortion ban back into effect and announcing that they would decide the case themselves without waiting for the appeals court.
To take a case out of order, as the court did (a procedure known as a grant of certiorari before judgment), requires agreement by a majority—five justices instead of the four ordinarily needed to grant review. So, given that a majority had approved taking up the case, the court’s skeptical response to Idaho’s argument during the April 24, 2024, argument was notable. Justice Barrett, in particular, was visibly alarmed by the state lawyer’s refusal to say whether a woman with a pregnancy in urgent need of termination could legally be treated under Idaho’s law. “Counsel, I’m kind of shocked,” Barrett said to the lawyer, Joshua Turner. Continuing to press the lawyer with pointed questions that he refused to answer, Barrett eventually declared, “You’re hedging,” and gave up. By contrast, Solicitor General Elizabeth Prelogar, arguing for the government, made graphically clear the dire impact Idaho’s law was having on pregnant women in crisis. She pointed out that Idaho hospitals were being forced to airlift women out of the state on an emergency basis every other week. “That’s untenable,” the solicitor general told the justices.
Two months later, on June 27, 2024, the court dismissed the case without deciding it and restored the injunction that barred enforcement of the Idaho law. It had been a “miscalculation” to take the case without waiting for the lower courts to develop it, Justice Barrett wrote by way of explanation in an opinion that Roberts and Kavanaugh joined. While Barrett sounded almost apologetic, Justice Kagan, joined by Justice Sonia Sotomayor, was more direct. “Idaho’s arguments about [the Emergency Medical Treatment and Labor Act] do not justify, and have never justified, either emergency relief or our early consideration of this dispute,” Kagan wrote (Moyle 2024, at 327). Clearly, she and Sotomayor had opposed taking the case. Just as clearly, based on their opinion dissenting from the dismissal, Alito, Thomas, and Gorsuch had voted to hear the case and now wanted to keep it and rule for Idaho. Justice Ketanji Brown Jackson also wanted to proceed, but from a very different perspective:
While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires. This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it. And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price. (Moyle 2024, at 345)
Totaling 47 pages, the separate opinions in Moyle showed that the reality of the post-Dobbs world had penetrated the court’s quiet precincts, even into the conference room in which the justices meet in complete privacy to discuss cases. A question that had appeared straightforward enough to the conservative justices in January had some of them looking for cover in June. In fact, according to one published account, consensus among the six conservative justices who had voted to hear the case over the three liberal justices’ objections evaporated almost immediately; the absence of a clear majority when the justices met after the argument to discuss the case left Chief Justice Roberts unable to assign a majority opinion (Biskupic 2024). Whatever happened behind the scenes, an extraordinary institutional failure played out in public.
Also ending in a nondecision, the term’s other abortion case illuminated a separate aspect of the post-Dobbs landscape. This case, Food and Drug Administration v. Alliance for Hippocratic Medicine (2024), showed how some conservative movement lawyers placed on the federal bench during the Trump administration were distorting settled law, exploiting the opportunity opened by Dobbs for accomplishing an anti-abortion agenda. One such judge is Matthew Kacsmaryk of the Federal District Court in Amarillo, Texas. He previously had been deputy counsel of First Liberty Institute, a Christian legal organization that litigates against LGBT rights and abortion. In April 2023, ruling in a case brought by a coalition of anti-abortion medical groups and doctors, Kacsmaryk declared invalid the FDA’s approval of mifepristone, one of the two drugs that, used in combination, induce abortion in early pregnancy. It was a shocking decision. By the time of Kacsmaryk’s ruling, mifepristone had been in authorized use for 23 years, accounting for more than five million abortions with a complication rate lower than that of many common over-the-counter medications. Kacsmaryk been hand-selected by the plaintiffs; just three months before filing its lawsuit against the FDA, the coalition, although based in Tennessee, had incorporated in the Amarillo division of the U.S. District Court for the Northern District of Texas, where Kacsmaryk sits as the lone federal judge and hears 95 percent of its cases. (The frequent selection of Judge Kacsmaryk by conservative plaintiffs has been called “forum shopping on steroids” [Persky 2024].) In an opinion referring throughout to “unborn humans” rather than fetuses, the judge did the work he was put on the bench to do (Shaw 2023).
When the justices heard the FDA case in March 2024, the question that most obviously concerned them was whether the members of the plaintiff coalition, having suffered no personal injury from the availability of mifepristone and having participated in no abortions, had standing to sue in the first place. The United States Court of Appeals for the Fifth Circuit, while narrowing the District Court’s opinion, had affirmed the plaintiffs’ standing. That was a mistake, the Supreme Court ruled unanimously. Justice Kavanaugh, writing the opinion, applied the court’s long-standing rules on standing, which the two lower courts had indisputably distorted. “The federal courts are the wrong forum for addressing the plaintiffs’ concerns,” Kavanaugh wrote; rather, those who objected to medication abortion could take their complaints about the FDA to the president, Congress, or the electoral process.
Was there deeper significance to this decision? Given the blatant procedural error the lower courts committed, it is hard to say. The decision’s unanimity may simply reflect the fact that justices across the ideological spectrum are attentive to the doctrine of standing, even if not always for the same reasons. Even so, these first two abortion cases to reach the court after Dobbs did, taken together, contain a lesson about the destabilizing consequences of overturning Roe. It may not have occurred to the justices in the Dobbs majority, as they satisfied themselves that “the Constitution makes no reference to abortion” (Dobbs 2022, at 2242), that they were inviting states to relegate pregnant women hemorrhaging from prematurely ruptured membranes to evacuation by air to a state where doctors could provide the standard of care without fear of legal liability. But listening to the description during the argument in Moyle of what was happening in Idaho, it perhaps occurred to some of them that however horrifying that scenario was, the court owned it now.
These first post-Dobbs encounters with abortion served to refute the blithe assumption underlying Justice Kavanaugh’s Dobbs concurrence: “After today’s decision, the nine members of this court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans. That issue will be resolved by the people and their representatives in the democratic process in the states or Congress” (Dobbs 2022, at 2309). Yes, the court ruled that there is no “basic legality” under the Constitution to terminating a pregnancy. That is one way of describing the rule of Dobbs, but it is a rule that contains multitudes. The 2023–2024 term suggests that the court’s work is only now beginning.
Footnotes
Notes
Linda Greenhouse is a senior research scholar in law at Yale Law School, where she taught from 2009 to 2024. Previously, she spent 30 years as The New York Times’s Supreme Court correspondent, winning a Pulitzer Prize in 1998. Her books include Becoming Justice Blackmun, a biography of the Supreme Court justice.