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The potential silver lining for supporters of abortion rights

The Supreme Court could be on the verge of gutting or overturning Roe v. Wade. But that wouldn’t be the end of the story.

On Monday, the Supreme Court justices said they would hear a Mississippi abortion case that challenges Roe v. Wade. Arguments are expected to be made in October.
On Monday, the Supreme Court justices said they would hear a Mississippi abortion case that challenges Roe v. Wade. Arguments are expected to be made in October.Globe Staff/Getty/Adobe

The Supreme Court agreed this week to hear the most significant abortion case in decades, and abortion-rights supporters are panicking.

Dobbs v. Jackson Women’s Health involves a Mississippi law banning abortion at or after 15 weeks of pregnancy, with exceptions for some medical emergencies and severe fetal abnormalities. Most abortions — over 92 percent, according to the most recent data from the Centers for Disease Control and Prevention — occur in the first trimester, and if the Mississippi law is allowed to stand, those wouldn’t be blocked. But pro-choice Americans have reason to be concerned. To uphold Mississippi’s law, the court’s conservative six-justice majority would have to overturn at least part of Roe v. Wade and the abortion-rights cases that followed it. That’s because Roe recognized a right to choose abortion before fetal viability — the point at which survival outside the womb is possible — which is usually somewhere between 22 and 24 weeks. Because Mississippi’s ban would kick in much earlier, the court will be able to uphold it only by eliminating Roe’s language about fetal viability or by reversing Roe altogether.

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Of course, predicting the outcome of abortion cases has proved to be devilishly hard. In the early 1990s, the Supreme Court had a six-justice conservative bloc and a case teed up to reverse Roe, yet the justices balked when the moment came. It’s certainly possible that something similar could happen this time around. Chief Justice John Roberts, who cares about safeguarding the court’s legacy (and his own), may persuade his conservative colleagues not to go all the way to eliminating abortion rights.

But even if the court does roll back abortion rights, as is considered likely, the long-term damage to the pro-choice cause might be less severe than some would anticipate.

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Obstetric and gynecological care have changed since Roe v. Wade was decided in 1973. Although low-income Americans still struggle to gather the resources to get an abortion, people can buy abortion medication online. The Food and Drug Administration is poised to change the rules governing a key abortion drug, mifepristone, putting more of it in circulation. If red states criminalize abortion, it will be harder than it was previously to eliminate abortion access.

Might it eventually be a good thing for abortion-rights supporters if Roe is gone? Joan Williams, a law professor at the University of California Hastings, recently went so far as to argue that the pro-choice movement and the Democratic Party might be better off without Roe — that many more voters would find progressive politics attractive and that the abortion wars would end or at least rage less viciously.

That last part seems far-fetched. Antiabortion leaders will not stop with reversing Roe — the movement seeks to win recognition for fetal personhood and ban all abortions nationwide. Abortion-rights supporters, meanwhile, will seek to reshape the Supreme Court, expand abortion access in the states, and pass federal protections for a right to choose. There is no reason to expect the abortion conflict to de-escalate in a post-Roe America.

If anything, backlash to any Supreme Court decision may make the issue even more politically salient, especially since the ruling is likely to be handed down in June 2022, months before the midterm elections. And there is reason to think a decision reversing Roe would indeed produce a backlash: While most Americans support restrictions on abortion, especially later in pregnancy, majorities oppose the idea of reversing Roe or permitting criminalization of the procedure earlier in pregnancy.

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The history of the abortion debate tells us that a backlash to the end of Roe may galvanize abortion-rights supporters to a greater extent than antiabortion voters would be fired up by their victory in the Supreme Court. After all, after the pro-choice movement won in Roe, complacency, not passion, took hold. And there are signs that abortion opponents may try to overplay their hand. In First Things, a right-leaning ecumenical religious journal, abortion foes have been debating a strategy of asking the court to recognize a right to life and treat all abortions as unconstitutional. Many red-state lawmakers now seem to believe that any abortion ban will please their voters and satisfy the court. For example, Texas just passed a law allowing anyone in the state to sue a doctor who performs an abortion after six weeks, when a fetal heartbeat or cardiac activity can be detected. In the past, overconfidence has been costly for those who support abortion rights. The same might be true for the antiabortion movement.

The reversal of Roe could also energize organizing around reproductive rights and reproductive justice. Contrary to what many believe, Roe did not create the antiabortion movement, which was active in the late 1960s and early 1970s. Nevertheless, Roe did help to transform the movement from a state-by-state operation into a well-funded national powerhouse. Backlash to the end of Roe could give supporters of abortion rights a similar energy. An energized pro-choice movement could do more to expand or maintain abortion rights in the states, push for federal legislation guaranteeing abortion rights, and even demand changes to the Supreme Court itself.

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For decades, abortion foes have chipped away at the Roe decision and limited access to abortions, especially for low-income people. Abortion-rights supporters have sometimes struggled to mobilize supporters around threats to access. Resurrecting the rights guaranteed by Roe could become a rallying cry for a more focused reproductive justice movement.

Equally important, in the next round of constitutional battles about abortion, pro-choice activists would no longer have to defend problematic aspects of the Roe decision, including its reliance on the viability of a fetus as a legal threshold. Indeed, even abortion-rights supporters have found flaws in the Roe ruling. As early as the 1980s, Ruth Bader Ginsburg argued that abortion rights would be more secure if the court had based the Roe decision on arguments about equality and sex discrimination rather than on concerns about privacy. Whereas the Equal Protection Clause bars discrimination (including on the basis of sex), the text of the Constitution does not explicitly spell out a right to privacy, and the court’s suggestion that abortion rights had a strong foundation in the nation’s traditions seemed implausible to some scholars. But going too far in criticizing Roe, or providing better alternatives, risked giving the opposition valuable ammunition. In a post-Roe world, activists would be free to find a stronger foundation for abortion rights.

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Pro-choice commentators suggest that when it comes to abortion, the sky is falling. They are not wrong. But those on both sides seem to be forgetting what the abortion-rights side has learned the hard way over the past 50 years: When the Supreme Court has something big to say about abortion, the justices almost never get the last word.

Mary Ziegler, a law professor at Florida State University, is the author of “Abortion and the Law in America: Roe v. Wade to the Present.