With the Supreme Court’s reversal of Roe v. Wade, there is no longer a constitutionally protected right to abortion in the United States. Instead, women and girls of child-bearing age — typically 15 to 44 years old, all 64.5 million of them — will know where they stand legally depending on where they stand literally, as each state decides whether and how ferociously to criminalize abortion, abortion providers, and perhaps the women seeking abortions.
The long-awaited 6-3 opinion in Dobbs v. Jackson Women’s Health Organization has been actively sought by antiabortion campaigners since the day Roe was decided in 1973. What followed was nearly 50 years of tactical trial and error, such as unsuccessful fetal personhood amendments, mountains of restrictive regulation, regular appeals to the Supreme Court, and political and spiritual consolidation (Catholics, evangelicals, and Republicans). Justice Samuel Alito claimed in his opinion that he and four other conservative justices could not have ruled otherwise; their hands were tied: Roe and Planned Parenthood v. Casey, which affirmed Roe’s basic holding in 1992, “must be overruled.”
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Alito gave two reasons for his absolutism. First, Roe was “egregiously wrong from the start”; second, Casey does not compel an “unending adherence” to Roe, although such adherence, generally known in law as “following precedent,” is, Alito’s opinion aside, usually thought to be a good thing.
The egregiousness point focuses on the fact that privacy, from which the abortion right is derived, is not itself in the text of the Constitution. This does not disturb other notable jurists satisfied that while the word may be absent, the principle of privacy is found throughout the Constitution in an array of explicit protections, such as requiring a warrant before a search.
Once privacy is discarded as a constitutional right, other rights derived from privacy are vulnerable. Despite Alito’s assurance that Dobbs has no application beyond abortion, Justice Clarence Thomas has already staked his claim: The court, he wrote in a concurring opinion, should “reconsider all of the Court’s [privacy] precedents,” specifically including contraception, same-sex relations, and marriage equality. This is grim.
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Alito, too, is keen to do “textualists” one better than complain about privacy gone AWOL. He notes that the word “abortion” is also not in the Constitution, as though this were some kind of interpretative slam dunk. But of course the word abortion isn’t in our founding document, even though abortion was common and legally practiced when the Constitution was drafted. The Constitution is not an index listing every human activity that a state might address. Many topics or categories go unmentioned, but this has not deterred the court from adjudicating where activities such as vaccinations, political parties, or vasectomies fit into our constitutional order and the protection of rights.
Curiously, another word is missing from the Constitution, and that is “woman.” This rather suits Alito’s method: He dismisses women’s experiences and their reliance on the freedoms wrought by Roe as intangible (and the court’s dissenters take him to task for it).
But Alito wants to assure the very women he is disempowering that they can still feel good in a post-Roe world. He conjures facts meant to show how benign the experience of an unwanted pregnancy really is, since women are provided with adequate statutory and social support. There is pregnancy leave (12 unpaid weeks for some employees) and there are bans on pregnancy discrimination. There are safe havens where women can anonymously deposit their newborns, and there is high demand for them from adoption agencies. These options are meant to reassure the skittish that an unwanted pregnancy is not so bad and abortion not necessary.
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But this scenario is from “Mr. Rogers’ Neighborhood,” not the experience of real women facing a crisis in their own zip code. For many women, the word that captures the feeling that one’s world has fallen in on itself is “calamity.” Roe understood this. It arrayed a list of woes — real woes — that can accompany unwanted motherhood, including the “distressful life and future” that “maternity, or additional offspring, may force upon the woman. "
I asked a friend if there was anything she’d like to hear or learn about Dobbs and its place in the post-Roe world. Her answer came slowly: “Can you give us a little hope?”
Ah, hope.
Even before Merrick Garland was denied his seat on the court by Republican subterfuge, before the Brett Kavanagh confirmation hearings, before Justice Ruth Bader Ginsburg’s death, before the mysteries of the leaked Alito draft opinion, a kind of miasma had set in around the Supreme Court as the institution where hope was upheld against regressive legislative majorities. But a new reality may be setting in: This is not your grandparents’ Supreme Court.
The Dobbs decision has no clear silver lining. Even women who cheer the outcome have not yet grasped its significance for them, in contrast to the decision as a political capstone in a party platform. But remember that women of all parties, ages, religions, and colors have abortions. If they haven’t had an abortion themselves, they probably know someone who has.
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This might then be moment for a new political and social realism, one that works toward reproductive solidarity and focuses on legislative politics in the states.
Solidarity might also include greater generosity at the personal level toward those who have ended a pregnancy. The silence and secrecy that surrounds abortion practices and logistics is deeply entrenched and will only get worse as the criminalization of abortion becomes more normalized.
Such solidarity must reach across lines of class, race, age, and maternal status. And it isn’t only work on abortion legislation that is needed, but also attention to such issues as voter suppression that keep all women’s interests and participation at the periphery of political life.
These suggestions may not seem hopeful or immediate enough. Certainly there is more thinking to be done. The Alito opinion turned its back on sex inequality as a means of understanding the harms of involuntary motherhood to women. Our task is: how to turn our collective backs on Dobbs.
Carol Sanger is a professor at Columbia Law School and author of “About Abortion: Terminating Pregnancy in the 21st Century.”
