The Supreme Court overturned Roe v. Wade on Friday, abolishing a constitutional right to abortion that has existed for nearly half a century. Its 6–3 decision in Dobbs v. Jackson Women’s Health Organization—which overrules Roe by a 5–4 vote—paves the way for total or near-total abortion bans in half the states. Justice Samuel Alito’s opinion for the court, joined by four other Republican-appointed justices, largely tracks the leaked draft. The bottom line remains the same: the eradication of federal protections for reproductive freedom. The result will be catastrophic for millions of people who will now be forced by the government to give birth against their will. And it will usher in a new era of surveillance, prosecution, and incarceration for those suspected of facilitating unlawful abortions—including their own.
Dobbs reads more like a polemic against abortion than a piece of legal analysis. Alito expressed disgust for abortion at every turn and evinced a snide hostility toward both patients and providers. He begins and ends with the assertion that reproductive freedom cannot possibly be guaranteed by the Constitution because it is not spelled out in so many words. Roe, he declared, was an “abuse of judicial authority” that “was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Of course, Roe found that the right to bodily autonomy is a component of personal “liberty,” which is expressly protected under the Fifth and 14th amendments. But Alito rejected this theory on the grounds that the ability to terminate a pregnancy is not “deeply rooted” in the nation’s “history and tradition.” To bolster that conclusion, he presented historical writings (by men) condemning abortion as a monstrous and illegal act. The vast majority of his evidence was written during a time when women had virtually no rights at all, including the right to vote, hold office, practice law, own property, or not be raped by their husbands.
Chief Justice John Roberts wrote a concurrence in the judgment, as expected, advocating for the court to uphold Mississippi’s 15-week ban—the law at issue in Dobbs—without formally overruling Roe. “I would take a more measured course,” the chief justice wrote, recognizing a right to abortion that extends “far enough to ensure a reasonable opportunity to choose” but no further. The liberal justices wrote a joint dissent highlighting the fact that the decision was made possible solely by the addition of Justices Brett Kavanaugh and Amy Coney Barrett to the bench. “A new and bare majority of this Court—acting at practically the first moment possible—overrules Roe and Casey,” they wrote, continuing:
It converts a series of dissenting opinions expressing antipathy toward Roe and Casey into a decision greenlighting even total abortion bans. … It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.
Republicans have spent decades preparing for this day, and their work will now come to fruition. Thirteen states have “trigger bans” that outlaw almost all abortions; they are designed to take effect once Roe falls, and will be enforced very soon. Four more states have pre-Roe bans on the books that will take effect in the near future. (Another, Michigan, has such a ban, but it has been blocked in state court.) Four other states have six-week bans that are now, for the first time, enforceable. It is worth noting that Texas and Oklahoma already functionally prohibited most abortions by passing vigilante bans that outsourced enforcement to private citizens.
Although Alito suggests that his decision will simply revert the nation back to its pre-Roe status quo, that is a fantasy. Red-state prosecutors have already begun investigating and punishing women who miscarry, a tactic that will increase exponentially now that every miscarriage is evidence of a potential crime. Similarly, doctors and pharmacists have started turning away miscarriage patients for fear of lawsuits and prosecution. The treatment for a miscarriage is often identical to the treatment for abortion. It is thus inevitable that women whose pregnancies end on their own will be caught up in the emerging dragnet.
Then there are the countless women who will obtain abortion pills illegally to terminate their own pregnancies. Anti-abortion advocates have long claimed that they wish to punish only the provider, not the patient—but increasingly, Americans manage their own abortions with medication privately, at home. Women have already been arrested and imprisoned for inducing abortions with pills purchased online. The truth is that these medications are extremely easy to obtain and safe to use; red states cannot realistically prevent their residents from acquiring them. Even when abortion bans purport to exclude patients from penalties, individuals who buy these pills illegally may be subject to a wide array of other criminal penalties.
Right now, citizens of red states who have enough money and resources can still travel across state lines to access reproductive health care. But Republican legislators are already crafting laws to prohibit women from traveling out of state to terminate a pregnancy. They are considering new measures that would seek to shut down clinics in blue states by subjecting providers and patients to severe civil and criminal penalties. Although Alito believes that the Supreme Court has now washed its hands clean of the abortion issue, the next phase of restrictions will raise a slew of thorny constitutional questions for the justices to suss out.
There is a strong correlation between states with restrictive abortion laws and states with high rates of maternal and infant mortality. The end of Roe will result in the deaths of many more women, with women of color at disproportionate risk of complications and death from childbirth. It will also increase the rate of child poverty in regions without abortion access. Red states have failed to enact any meaningful policies to address these problems. By criminalizing abortion without bothering to help those forced to carry unwanted pregnancies, they have forced millions of low-income women—and their children—deeper into poverty.
Dobbs purports to protect “life.” In reality, it will only lead to more suffering and death.
Update, June 24, 2022: This piece has been updated to clarify how the justices voted in Dobbs, and which number of those votes explicitly were to overturn Roe.