Below is my column in USA Today on the reversal of Roe v. Wade. When Dobbs was accepts, I wrote that for thirty years as a television and print legal analyst I have annually downplayed claims of commentators that a given case before the Court was a true threat to Roe. However, with Dobbs, I saw a true existential threat to the decision for the first time. It has now played out as expected with a historic 6-3 ruling to overturn the case.
Yet, some coverage has clearly misrepresented the opinion and falsely claimed that it makes abortion illegal in the United States. Others falsely claim that the justices wrote an opinion opposing abortion. The decision focuses on who must decide this question, not what should be decided. The issue of abortion will now return to the states where abortion is expected to remain legal for most women in the country. Roughly 13 states, however, are moving to end abortion and the decision obviously represents a major change in the rejection of a federal constitutional right to abortion services.
Here is the column:
With the release of the decision in Dobbs v. Jackson Women’s Health Organization, politicians and pundits went public with a parade of horribles – from the criminalization of contraceptives to the reversal of Brown v. Board of Education. In reality, the post-Roe world will look much like the Roe world for most citizens.
While this is a momentous decision, it is important to note what it does and does not do.
The decision itself was already largely known. It did not dramatically change since the leak of an earlier draft. The conservative majority held firm in declaring that Roe v. Wade was wrongly decided: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
In the end, Chief Justice John Roberts cut a bit of a lonely figure in the mix of the court on the issue. His concurrence did not seriously question the majority view that Roe was not based on a good law. However, he would have stopped short of overturning the decision outright. It is the ultimate call of an incrementalist detached from the underlying constitutional interpretation.
The court now has a solid majority of justices who are more motivated by what they view as “first principles” than pragmatic concerns. From a court that has long used nuanced (and maddeningly vague) opinions to avoid major changes in constitutional doctrine, we now have clarity on this issue. It will return to the citizens of each state to decide.
The court anticipated the response to the opinion by those who “stoke unfounded fear that our decision will imperil … other rights.” The opinion expressly does not address contraception, same-sex marriage or other rights.
That claim has always been absurd but has become a talking point on the left. After the leak of the draft opinion, the New York Times opinion editors warned that some states likely would outlaw interracial marriage if Roe v. Wade is overturned: “Imagine that every state were free to choose whether to allow Black people and white people to marry. Some states would permit such marriages; others probably wouldn’t.”
It takes considerable imagination because it is utter nonsense, though it must come as something of a surprise to Justice Clarence Thomas, given his interracial marriage, or to Justice Amy Coney Barrett, given her own interracial family.
Nevertheless, politicians lined up to lead the parade of predicting horrible consequences. House Speaker Nancy Pelosi warned that “with Roe and their attempt to destroy it, radical Republicans are charging ahead with their crusade to criminalize health freedom.”
Yet, the fact is this decision is closely crafted to address whether there is a constitutional right to abortion and would not undermine these other rights. Thomas alone raised the issue of reexamining cases that protect same-sex marriage, interracial marriage and contraceptive rights. A majority of justices noted that “abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'”
The court held that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Much of course has changed since 1973 when Roe was handed down. At that time, most states restricted legal abortions.
Now, the overwhelming majority of Americans have supported Roe v. Wade and 16 states have guaranteed abortion, including states such as California, Illinois and New York that hold a significant percentage of the population. States like Colorado protect the right of a woman to make this decision without limitations on the stage of a pregnancy.
Moreover, abortions can be carried out at home, not in a clinic, with the use of abortion pills. It would be difficult for states to prevent access to such pills even if they were inclined to do so, particularly if such access is supported by the federal government.
Yet, 26 states asked the court to overrule Roe and its successor, Casey. With Dobbs, we will now have a new political debate over access and any limitations for abortion. Most citizens are in the middle on this debate.
While a strong majority support Roe v. Wade, they also support limitations on abortion. Polls also show that 65% of Americans would make most abortions illegal in the second trimester, and 80% would make most abortions illegal in the third trimester. (The United States is one of only 12among the world’s 198 countries that allow abortions for any reason after 20 weeks.)
President Joe Biden responded to the opinion by calling, again, for a federalization of the Roe standard by Congress. Even if the votes could be found to pass such a law, it is not clear that it would be upheld by a court that has now returned this issue to the states.
One thing Biden said was clearly true. Abortion will now be “on the ballot.” The justices were indeed motivated by the need for the public to make these decisions and wrote that “Roe abruptly ended that political process.”
The issue will loom large in the upcoming election now that states will decide their own laws, ranging from prohibitions to restrictions to absolute guarantees. And the outcome will turn on the votes of millions of citizens rather than nine justices.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.