What If <i>Roe</i> Is Overturned?
The politics of abortion could change more than the practice.
As soon as the Supreme Court granted cert in the case of Dobbs v. Jackson Women’s Health Organization, I rushed online to see the anticipated outcry. More on that in a moment.
The case challenges the constitutionality of Mississippi’s gestational age law that barred abortions past 15 weeks except in exceptional circumstances. This is a significant moment, because the Court did not need to take this case. There was no circuit split to resolve. And if the justices had no intention to change the lower court’s reading of applicable precedents, they could have let the appeals court’s ruling stand. It requires at least four justices to grant certiorari, and while that doesn’t necessarily portend a majority, it certainly raises the possibility that Roe (or, to be precise, it’s more recent iteration, Casey), may be overturned in the next Supreme Court term. Though only Clarence Thomas has stated his desire to reverse the abortion precedent, five other justices have signaled, at various times in their careers, that they might be open to it.
So I looked for the outrage online and haven’t found it. Admittedly, there’s a lot of competition. There’s a war between Israel and Hamas. Republicans are attempting to block a January 6 commission. The New York attorney general has announced that her inquiry into the Trump Organization has become criminal. A couple called Bill and Melinda are getting divorced. Besides, any Supreme Court decision would not come down until a year or more from now. I assume that once the import of this cert grant becomes clear, pro-choice advocates will bestir themselves.
I’ve been on the pro-life side of the debate for decades—not for religious reasons, but because I’m convinced that the moral weight is on that side. I believe that taking the life of an unborn child is something that should be only a last resort in very rare circumstances, so I will not shed any tears if the Court returns the law to the pre-Roe status quo. That said, a great deal has changed in the world since 1973, so while a revision of Roe/Casey would change the law, it’s not clear that it would actually change society very dramatically.
The trend. Abortion has been in decline for 40 years. In 1981, it reached a high of 29.3 abortions per 1000 women aged 15-44. By 2017, the rate had declined to 13.5 per 1000 women, which is below the rate when Roe was decided in 1973. So whatever we’ve been doing in the past 40 years—providing contraceptives, persuading people—it’s working pretty well.
States differ. The states that are likely to restrict abortion access already tend to have much lower rates of abortion than the states like California and New York that would be virtually certain to maintain liberal abortion regimes. It’s also worth noting that even the Mississippi law under consideration at the Supreme Court only forbids abortions after 15 weeks' gestation. Eighty-eight percent of abortions occur within the first 12 weeks. Another 6.3 are performed between 13-15 weeks. So the Mississippi law would affect only 5 percent or so of all abortions.
The methods. In 1973, the only safe abortion procedures were surgical. That’s no longer the case. There are several “morning after” pills that are legal and widely available—though most must be taken with days of unprotected sex. There are also medication abortions using the drugs mifepristone and misoprostol. Used in combination during the first 11 weeks of pregnancy, they induce a miscarriage. In 2017, nearly 40 percent of all abortions were medication abortions.
If the Supreme Court were to change abortion law, many more women in states with restrictive abortion laws would probably attempt to secure abortifacient medicines. That might ignite a new black market, since current laws require that the medications be administered in person and a number of states are rushing to restrict access to them.
The politics. If the Supreme Court grasps this nettle and reverses Roe/Casey, millions of Americans who have tended to focus their political sights on Washington, D.C. will be forced to look homeward. Abortion rights supporters will have to get busy in their neighborhoods, counties, and state capitals. Abortion opponents have already been at this to some degree, passing restrictive laws in hopes of getting a test case to SCOTUS. Now that the Court has agreed to hear the case, it’s possible to imagine 50 state fights. That is the way we’re supposed to resolve these fraught questions. And there’s a silver lining for pro-choice advocates: The issue may juice interest in 2022 races among Democrats, who so far have lagged Republicans in expressions of enthusiasm.
Finally, for those abortion foes who’ve shown themselves willing to accept any moral compromise in the name of “saving babies,” this might be an opportunity to step back. The presidency will be largely irrelevant to the question of abortion if it becomes a matter of state law. So being on the right side of the question can no longer serve as a get-out-of-jail- free card for otherwise morally loathsome candidates.