What to expect in the post-Roe world
In their historic ruling in Dobbs v. Jackson Women’s Health Organization, six Supreme Court justices noted that the nation was grappling with this deeply divisive issue in 1973 but that “Roe abruptly ended that political process.” The court has now declared that the future of abortion will rest with 330 million Americans rather than nine justices.
As this matter returns to the states, it is striking to consider what has changed legally and socially in the past 50 years. The comparison may hold some interesting surprises for politicians who are now declaring, as did President Biden, that “this fall, Roe is on the ballot.”
How little has changed
If one looks solely at the alignment of states, surprisingly little has changed. In 1973, 30 states banned abortion at any stage of a pregnancy, with some exceptions for the health of the mother. In the Dobbs litigation of 2022, 26 states asked the court to overturn Roe and its successor, Casey.
Thus, we remain deeply divided.
Roughly 16 states are poised or expected to make abortion illegal immediately under so-called trigger laws. South Dakota, Louisiana and Kentucky have immediate prohibitions that will come into effect. Missouri claimed to be the first to declare all abortion as unlawful except for medical emergencies.
Twenty-seven states have protections for abortion that are expected to continue. States like Colorado, New Jersey, Oregon and Delaware actually protected abortion without any limit on the stage of a pregnancy — guaranteeing the right up to just before time of birth.
Internationally, only seven countries allow abortion after the 20th week. While many countries have decriminalized abortion, most are closer to Mississippi than Michigan in limiting abortion to the first or second trimester.
How much has changed
While Dobbs is a major reversal of a long-standing precedent, much has changed legally since 1973. After Roe, the Supreme Court continued to expand protections over lifestyles and intimate relations. In the parade of horribles that followed Friday’s release of the Dobbs ruling, politicians and pundits warned that the decision could undo cases protecting contraception, same-sex marriage and other rights.
House Speaker Nancy Pelosi (D-Calif.), Vice President Harris and other Democrats continue to claim that the court was taking the country back to the last century. The image of criminalized homosexuality, marriage bans and contraception limits is unnerving — but also untrue.
In the Dobbs decision, the court’s majority expressly, repeatedly rejects the application of this holding to these other rights. Indeed, it is relatively rare to see the court go to this extent to proactively close off the use of a new case in future cases. The court said that “intimate sexual relations, contraception, and marriage” are not impacted by its holding because “abortion is fundamentally different, as both Roe and Casey acknowledged.” It noted that abortion is unique in dealing with “what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
The court repeatedly stressed that those claiming the country will be put into a legal Wayback Machine are simply using the opinion “to stoke unfounded fear that our decision will imperil those other rights.” It could not be more clear, as the court said, that “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.'”
The court and Justice Brett Kavanaugh’s concurrence repeat, almost mantra-like: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Only Justice Clarence Thomas suggested that these other cases should be examined, yet even he stressed this opinion expressly rejects that application.
Putting aside the legal changes, there are major technological changes since 1973 that will impact the post-Roe world. Roughly 60 percent of abortions today are carried out at home, not in clinics, using pills with mifepristone and misoprostol to abort a pregnancy — the so-called morning-after option typically used in the first 10 weeks of a pregnancy. In 2021, the Food and Drug Administration permanently removed the in-person requirement for these prescriptions and allowed women to access the drugs via telehealth appointments and online pharmacies. It will be difficult for states to interfere with such prescriptions, particularly if the federal government protects such access.
How we have changed
The greatest change may be us. As this issue returns to the states for citizens to decide, we are a different country than we were in 1973. Great strides have been made in the advancement of women and a wider acceptance of people making decisions about their own lives and values. While we remain divided on abortion, the public seems far more moderate and unified than the leaders of either party.
In 1975, polling showed 54 percent supported abortion under some circumstances, with 21 percent saying it should be entirely legal; 22 percent said it should be illegal.
According to recent polling by the Pew Research Center, only 8 percent of adults say abortion should be illegal without exception, while just 19 percent say abortion should be legal in all cases, without exception. Yet, polls also show that 65 percent of Americans would make most abortions illegal in the second trimester, and 80 percent would make most abortions illegal in the third trimester.
These polls suggest that the majority of Americans will continue to live in states protecting abortion while citizens would support limits like the one in Mississippi. In Virginia, Gov. Glenn Youngkin (R) announced an effort to limit abortions to Mississippi’s 15-week standard but expressed a willingness to compromise on that cutoff date. In other words, there may be room for compromise as states work out their own approaches to abortion.
Of course, none of the political or legal realities will likely penetrate the rage and rhetoric following the decision.
Indeed, there is a tendency toward Roe revisionism. Roe supporters ignore that Roe’s constitutional rationale was always controversial, including among some liberals. Justice Ruth Bader Ginsburg, for example, called the ruling “heavy-handed judicial activism” and felt the decision went too far. The original Roe actually died years ago when it was gutted by Casey in 1992 in its logic and tests. It was later the subject of 5-4 decisions that created a confusing muddle of what constituted “undue burdens.”
Such revisionism is a natural part of grieving. In Shakespeare’s “Richard III,”the Queen Mother was asked how to deal with the hate of loss. She responds: “Think that thy babes were sweeter than they were; And he that slew them fouler than he is.” The same is true of Roe revisionism. Roe is now presented as inviolate and beyond question in its constitutional footing, while the opinion that slew it is presented as threatening every right secured since 1973.
Our post-Roe world will not be written by Congress with the proposed federalization of Roe or another 50 years of conflicting court decisions. Instead, it will rest with citizens in 50 different states in coming years. The process just might surprise us.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.