Editor’s Note: This article is part of a symposium titled “Abortion after Dobbs.” We asked seven Commonweal contributors, from various backgrounds and with various views, to discuss what the Supreme Court’s recent decision is likely to mean for abortion law, American politics, and the creation of a “culture of life” worthy of the name.
With Dobbs v. Jackson Women’s Health Organization, the Supreme Court has attempted to repair the fissures in its own legitimacy created a half century ago by Roe v. Wade. Will this attempt work? Or will it only deepen our moral and political divisions?
In my view, both the dissent and the majority opinions represent approaches that are unlikely to heal the divisions precipitated by Roe. The most promising—because it is the most judicious—approach was proposed by Chief Justice John Roberts in his concurring opinion, which would have upheld the Mississippi law at issue without technically overturning Roe. It is unfortunate that he was unable to convince Justice Brett Kavanaugh to join him rather than the majority, despite Kavanaugh’s clear reservations about the majority opinion. We might then have had a controlling opinion that allowed us, slowly and haltingly, to move forward together as one people on the vexing question of abortion. Instead, by returning abortion to the states for each to regulate as it sees fit, Justice Alito’s majority opinion condemns us to more severe balkanization.
Drawing on Justice Robert Jackson’s famous observation, we can say that the Supreme Court is not final because it is right; it is right because it is final. By this standard, Roe v. Wade was not at all right, because it was by no means final. In the late 1960s and early 1970s, abortion was at the margins of our national political debates. It was nearly exclusively the province of academics and a few activists on either side. Roe v. Wade provoked a raging political controversy about abortion where there was none.
But that controversy has proven irresolvable. As many polls show, opinions on abortion have shifted very little over the past few decades. Gallup concluded that in 2022, 35 percent of the population said that “abortion should be legal under any circumstances,” 18 percent said that it “should be legal under most circumstances,” 32 percent said that it should be legal “only in a few circumstances,” and 13 percent said that it should be “illegal in all circumstances.” Three percent of the respondents expressed no position. In 1994, the first year for which Gallup provides data on this question, the responses were extremely similar.
Viewing these polls, we are tempted to claim that Roe made no difference in our national views on abortion. But such a claim would be deeply misleading. Roe functioned like a political virus, whose mutant DNA reconfigured and divided the country, as abortion morphed into a wedge issue. Gallup polls show that in 1995, 51 percent of Republicans identified as pro-life, while 42 percent viewed themselves as pro-choice. By 2022, 70 percent of Republicans were claiming the pro-life label, while only 23 percent described themselves as pro-choice. The opposite trend is evident among Democrats. Fifty-eight percent of them were pro-choice in 1995; 88 percent were pro-choice in 2022. One-third of Democrats still identified as pro-life in 1995; only one in ten identified as such in 2022.
Political divisions in the United States are increasingly correlated with other divisions. One study showed that Democrats and Republicans are now less likely to marry and form families with each other. With the solidification of “red states” and “blue states,” they are also less likely to have to govern together. In a recent article in the Atlantic (“America Is Growing Apart, Possibly for Good”), Ronald Brownstein provocatively argues that the divisions of the Civil War still exert their influence—although this time, the South may have the upper hand.
Roe failed to convince the majority of the country of its approach to abortion and the law. Crucially, however, it also failed to fail. The fact that Americans remain so evenly divided about the question is what distinguishes Roe from other key cases where the court has overruled a prior decision, such as the court’s repudiation of the constitutional impediments it placed in the way of Franklin Roosevelt’s New Deal. By the time the court reversed course on the New Deal, nearly the entire country recognized that addressing the suffering caused by the Great Depression required a new approach.
One could argue that times have changed since the 1930s; we are now helplessly riven by the culture wars. But consider two other watershed Supreme Court cases that involved culture-war issues. In 1997, in Washington v. Glucksberg, the Supreme Court declined to recognize physician-assisted suicide as a constitutional right, leaving the matter to the states to regulate as they saw fit. Nearly twenty years later, in Obergefell v. Hodges, the court recognized that the Constitution protects the right of same-sex couples to marry on the same terms as opposite-sex couples. Although controversial at the time, neither of these decisions has proven to be incendiary in the way that Roe did.
How should the Supreme Court treat a decision like Roe, which not only failed to succeed, but also failed to fail, thereby leaving the country divided in numerous ways? There are three basic options, each of which is taken by the three major opinions in the case. Let’s begin with the dissent (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan), which is arguably the most conservative of the opinions in Dobbs, because it argues that the right decision is to stay the course and uphold Roe. The dissenting justices emphasize the importance of following precedent for the sake of judicial humility and respect for the rule of law. Moreover, they point out that the right to abortion is protected by precedent upon precedent; Planned Parenthood v. Casey reaffirmed—while also reconfiguring—the right to abortion almost twenty years after Roe. Because nothing fundamental has changed since Casey was decided except the membership of the Supreme Court, the dissent argues that overruling Roe is a political decision, not a decision of sound jurisprudence.
The dissent makes several important points. Stability and predictability are essential to a well-run legal system. Change, particularly sudden change, can undermine the rule of law, eroding confidence in the fairness and workability of its broader framework. Judicial respect for precedent promotes law’s legitimacy as an exercise of power. Good law, as Aquinas recognized, must be settled law. But Roe v. Wade did not settle anything, so proceeding as if it did is not the answer. The dissent’s approach is therefore a non-starter.
Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, takes the opposite approach. The majority opinion is not conservative but radical, in at least three senses. First, it did not merely cut back Casey and Roe; it uprooted them completely: “We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.” Second, it cast both decisions, and their underlying interpretive framework, into jurisprudential darkness. The language of the majority opinion is immoderate and contemptuous. The opinion describes Roe not merely as mistaken, but as “egregiously wrong.” This is the language of prophetic indictment, not jurisprudence.
Third, and most strikingly, the majority opinion does not acknowledge the legitimacy or even the good faith of those who take a different view of the constitutional protections due to abortion, the importance of precedent, or, most fundamentally, the practice of constitutional interpretation. Contrast this with Justice Kavanaugh’s concurring opinion, which takes pains to emphasize the reasonableness and good faith of his opponents.
By overruling Roe and Casey, the majority may seek to return the country to the legal status quo ante, where some states were beginning to review and revise their abortion laws on their own initiative. But we cannot return to the debate as it was fifty years ago; there is too much water under the bridge.
Roe and its reasoning have become intertwined with other constitutional decisions that are part of a generally accepted package of rights. The right to privacy, understood as self-determination in the most intimate spheres of one life, not only generated a right to abortion, but also protects the right to buy and use contraception, along with right of same-sex couples to marry. As Justice Thomas suggested in his concurring opinion, dismissing the right to privacy in Roe entails dismissing it in those other cases too. Justice Alito denies this in his majority opinion, but his denial is unpersuasive, given his emphasis that true constitutional rights must be “deeply rooted in this Nation’s history and tradition.” Indeed, it is arguable that the law at the time of the Framers took a dimmer view of same-sex activity than it did of abortion.
Dobbs, then, disturbs established legal custom, just as Roe did before it. The Dobbs majority cites laws and legal practices going back seven centuries to argue that there is no deeply rooted right to abortion in our nation’s history and traditions. They may be right about that. But if we’re going to consider the effect of custom on law, it should be clear that the most recent fifty years of U.S. history counts more than the first fifty years. Custom may have its roots in the past, but it has its life and force in the present.
Women long dead cannot get pregnant now. But women alive today have lived their entire reproductive lives assuming that there is a constitutional protection for abortion as a backdrop for their decisions. In fact, the Guttmacher Institute estimates that about one in four American women will have an abortion in her lifetime. For many women in this country, Dobbs comes as a “bolt from the blue,” no less than Roe did half a century ago.
Finally, Dobbs cannot return the nation to the legal status quo ante because of the culture war precipitated by Roe itself. As we have already begun to see, the states will not leave each other in peace. Some conservative states will attempt to restrict travel to states with more liberal abortion laws, which will in turn offer themselves as sanctuaries for women facing unwanted pregnancies. Dobbs has inaugurated a more heavily armed culture war, if not yet an outright civil war, between pro-life and pro-choice states.
The arrogance in the Dobbs majority opinion is striking. It treats its own originalist approach to interpretation as if it were the only legitimate one, strongly implying that a more developmental approach is constitutional heresy. It frames the discussion of abortion in a way that emphasizes the legitimacy and dignity of the pro-life cause, while giving only cursory attention to the way losing the right to abortion may affect women’s lives. Moreover, it emphasizes the erosion of the rule of law brought about by Roe, without considering the damage its own opinion might do to the legal landscape.
In this respect, at least, the majority opinion and the dissent are mirror images of one another. The dissent, for its part, assumes that viewing the Constitution as living and developing is the only sensible approach. While it acknowledges the value of fetal life, it emphasizes the role that reproductive autonomy plays in the well-being of women, particularly those who are economically and socially disadvantaged. And in its own way, the dissent also ignores the past fifty years, refusing to acknowledge the failure of Roe and Casey to settle the abortion debate once and for all.
Chief Justice Roberts’s concurring opinion is in some ways difficult to read. Far from sweeping, it is decided on narrow legal grounds. On the one hand, Roberts would not technically overrule Roe v. Wade—that is, he would not disturb its holding that a Texas statute prohibiting abortion except to save the life of the mother was unconstitutional. On the other hand, by upholding the Mississippi law that prohibits abortion after fifteen weeks except in the case of necessity, he would also go beyond Casey—which went beyond Roe—in allowing states to regulate abortion to protect fetal life. Roberts argues that Mississippi’s regulations are not “unduly burdensome” on a woman’s right to choose abortion: “Ample evidence thus suggests that a 15-week ban provides sufficient time, absent rare circumstances, for a woman ‘to decide for herself’ whether to terminate her pregnancy.”
By holding the conflicting interests about abortion together, Roberts is attempting to hold the country together. He does not downplay the moral concerns on either side of the issue. Rather than encouraging balkanization, his approach provides an incentive—and possibly a blueprint—for the states to develop a more uniform approach to abortion that might be a workable compromise. The fifteen-week limit of the Mississippi law at issue is roughly similar to restrictions in Western European countries, where abortion is permitted in the earlier weeks of pregnancy and prohibited later on, with exemptions for pregnancies that threaten the health of the mother.
Roberts’s approach, of course, is subject to the same serious objection from both sides. He could be accused of making the same mistake that Lincoln made before the Civil War, by prioritizing national unity over the moral principle at stake in eradicating slavery. But the analogy does not hold. There was no moral good to be preserved on the pro-slavery side. Human beings cannot be owned. They cannot be treated as mere instruments of the will of another. In the slavery debate, moral balance was neither necessary nor possible. But abortion is different. Here, both sides of the debate perceive genuine goods. A woman’s bodily integrity and moral autonomy is a good. Protecting fetal life is a good. As polls show, many Americans are perplexed by abortion precisely because it is a question of good versus good, not good versus evil. While the Constitution may not settle the details of legislation, it can help point us toward a robust valuing of both goods.
Roberts’s compromise offers a framework for morally sound law in an increasingly divided society. The Mississippi law he upholds is moderate, roughly reflecting what polls show to be the position of many Americans. By keeping but revising Roe and Casey, Roberts’s opinion provides a better starting point for our national conversation about abortion, a point closer to the middle than to either extreme. In so doing, he offers hope that the issue of abortion will not permanently divide us as a people. It is a shame that his approach did not prevail.
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