After decades of court battles, the anti-abortion movement may be about to win its war against Roe v. Wade.
Last week, the Supreme Court heard argument in Dobbs v. Jackson Women’s Health Organization, a case that challenges Mississippi’s 15-week abortion ban. We won’t know the court’s decision for months. But based upon questions asked and comments made during the argument, five of the conservative justices on the 6-3 conservative-majority court seemed ready to throw out Roe v. Wade completely. The one possible holdout was Chief Justice John Roberts, who suggested through his questioning that abortions could be a protected right up to 15 weeks, rather than the current 24-week standard of “viability.”
There is no express provision in the U.S. Constitution that grants the right to an abortion. Nonetheless, a majority of Americans support that right as part of a woman’s right to privacy and autonomy. And we have become accustomed to a uniform national standard over the near five decades since Roe was decided. Advocates are concerned that if the Supreme Court throws out Roe v. Wade, some 65 million women across the country could lose access to an abortion. That is because 12 states have “trigger laws” that will automatically ban or highly restrict abortions if Roe v. Wade is overturned. Another eight states have anti-abortion laws that are not currently enforceable but would become enforceable without Roe v. Wade.
Without Roe v. Wade, the decision regarding abortion rights will be made on a state-by-state basis. That construct guarantees inconsistent treatment across the country of this important and highly emotional issue. And, inevitably, the impact of such inconsistent treatment will disproportionately affect poor and marginalized members of our society.
The abortion debate brings together a mix of religious, moral, ethical, legal, political and medical issues. And more than just about any other contentious issue in our society, it evokes intense emotion and animosity between those with differing opinions. So, it is not at all surprising to hear ominous predictions of terrible consequences that will follow a rejection of Roe v. Wade from advocates of abortion rights. What is surprising, however, is that we heard the same argument from Supreme Court justices who themselves will be deciding the issue, who claim to worry about the perceived integrity of the institution of the Supreme Court itself if a majority of justices vote to overturn a near 50-year precedent. We respectfully disagree.
The Dobbs case should be decided on its legal merit. We expect each of the justices to follow the law as they understand it. And just like every other case decided by the court — including Roe v. Wade itself — the majority view will determine the outcome. Those dissatisfied can pursue political or legislative solutions to address their concerns, but they need to do so with abiding respect for the institution of the Supreme Court and the integrity of our system of government. We will all be better for it.