This Sunday would have been the 50th anniversary of the right to choose abortion. Years ago, plans began to mark the occasion, including a major conference and exhibit at Harvard. Those events are still going on, but Roe v. Wade itself never made it to 50. Jan. 22 will still see protests from supporters of abortion rights and a smaller version of the antiabortion March for Life, and there is no doubt that the abortion wars are still raging. Nevertheless, there is a somber feeling about the 50th anniversary of the Roe decision. After all, the age of Roe seems to have come to an end.
But a look at our recent history makes clear why Roe still matters: It’s a reminder that our rights have never just depended on the federal courts — and that even when the Supreme Court acts, it responds to political parties, social movements, and ordinary voters.
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Start by noticing all the things that Roe has come to mean. When the justices originally decided Roe, they focused on the prerogatives of doctors — so much so that reading the original Roe decision is a strange experience for anyone who thinks of it as being about women’s rights. But by the end of the 1970s, Americans used Roe to symbolize self-determination for women, and even the Supreme Court started to follow suit in its own decisions.
But Roe wasn’t just a symbol of sex equality. Americans brought Roe into conversations about the legitimacy of the Supreme Court and the role of the judiciary in our democracy. They invoked Roe as they raised questions about the relationship between racial justice and legal abortion, debating why abortion rates were higher in communities of color. They reinterpreted Roe in conversations about religious liberty and who deserves it. While progressives equated Roe with freedom of conscience, conservatives sometimes saw attacks on their religious liberty in the quest to preserve Roe.
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The meanings of Roe don’t necessarily stem from the written decision itself. Justice Samuel Alito got a lot of things wrong in the court’s opinion in Dobbs v. Jackson Women’s Health Organization last summer, but he was right that commentators across the ideological spectrum didn’t like the reasoning of the Roe decision. Ruth Bader Ginsburg had argued that Roe would have been more persuasive as an opinion about equal protection — a point on which many scholars supportive of abortion rights still agree.
Roe’s legal impact also was not as potent as you might think. Even before the Supreme Court overruled Roe, a 1992 case, Planned Parenthood v. Casey, had superseded Roe, putting in place a framework that had made it easier for states to restrict abortion. And the right to choose abortion hardly guaranteed anything for everyone: Even before the court reversed Roe, abortion was exceedingly difficult to access across large swaths of the country, especially for those with the fewest resources.
The nation’s fascination with Roe is a testament to how the Supreme Court itself has never acted in a vacuum. In 1973, when the justices originally decided Roe, their opinion came down after decades of organizing by medical professionals, feminists, activists of color, religious leaders, and antiabortion activists. Roe both responded to and reworked arguments made outside of court about the personhood of the fetus and the equality of women.
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The same was true of the Dobbs decision. Republican presidents forged the court’s current conservative majority in large part with an eye to undoing Roe. Justice Alito’s opinion echoes talking points by abortion opponents in legal briefs, state legislatures, marches, articles, and private meetings. It’s a reminder of all the places rights were debated and refashioned over the past five decades. Supreme Court opinions on major topics like abortion are part of a broader dialogue about our rights, and neither Roe nor Dobbs is an exception.
Since last summer’s Dobbs decision, supporters of abortion rights have wondered what to do now that the door is closed in federal court, at least in the near term. But the history of the various meanings projected onto Roe reminds us that those defending abortion rights have always been strategically flexible. They’ve persuaded state courts in places like Kansas and Montana to recognize state constitutional rights to abortion. Voters several states have weighed in to retain their rights to choose.
With federal abortion rights gone for the moment, there’s an opportunity to develop bottom-up organizations that better reflect what people want when it comes to reproductive rights and justice. There’s a need to let more voters directly decide questions related to abortion through ballot initiatives. There may even be an opportunity for people who disagree profoundly on abortion to work together on issues that influence women and new parents, like the recently passed Pregnant Workers Fairness Act, which requires for the first time that employers make reasonable accommodations for their pregnant employees.
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Above all, Roe still matters because it reminds us that we all get a say in what our rights mean, and nothing, not even the Dobbs decision, can change that.
Mary Ziegler, a professor of law at the University of California Davis, is the author of the forthcoming book “Roe: The History of a National Obsession.”