If the Supreme Court Can Reverse Roe, It Can Reverse Anything

No one should get used to their rights.

Images of upset faces overlaying an image of the Supreme Court
The Atlantic; Getty

For months and even years I have seen this coming, and yet the reality of the Supreme Court’s decision is still a shock. How can it be that people had a constitutional right for nearly half a century, and now no more? How can it not matter that Americans consistently signaled that they did not want this to happen, and even so this has happened?

The Court’s answer is that Roe is different. Roe, the Court suggests, was uniquely, egregiously wrong from the beginning—a badly reasoned decision criticized by even the most ardent supporters of abortion rights, including the late Justice Ruth Bader Ginsburg. The majority suggests that the best comparison to Roe (and Planned Parenthood v. Casey, the decision that saved abortion rights in 1992) is Plessy v. Ferguson, the 19th-century decision that held racial segregation to be constitutional.

If this decision signals anything bigger than its direct consequences, it is this: No one should get used to their rights. Predicting with certainty which ones, if any, will go, or when, is impossible. But Dobbs v. Jackson Women’s Health Organization is a stark reminder that this can happen. Rights can vanish. The majority wants us to think otherwise. They tell us that a right to abortion is unlike other privacy rights, such as the right to marry whom you wish or to use whatever contraception you choose. Abortion, in their view, is distinct from these, because it puts someone else’s life on the line. And so if we believe the Court’s conservative justices, this is a reckoning about abortion and nothing more.

Even if this is the case, the Court’s decision is staggering. Emphasizing that no other rights will be lost—convincingly or not—suggests that there is no problem if this right disappears with the stroke of a pen. The majority opinion spends precious little time on the damage that reversing Roe will do.

Often, when the Court considers whether to reverse a past decision, the justices ask whether anyone has relied on the status quo—and whether unsettling it will devastate those people. The majority in Dobbs says almost nothing about the kind of disruption that is likely to come now that Roe is gone—and ignores the possibility that people have thought differently about intimate relationships, career decisions, and even how to make ends meet based partly on the idea that abortion is available. The Court stresses that it does not care about the public’s reaction to its opinion—the justices must simply do their jobs and interpret the law. The justices seem to simply not care if this decision breaks the country in two. Wrong is wrong, the justices declare. The rest hardly registers.

But if the Court can so blithely reverse Roe—when all that has changed is that conservatives finally had the votes—we should wonder whether this is just about abortion.

After all, this decision did not come about solely because Roe was a weakly reasoned decision. This opinion did not come down because Roe launched our culture wars (a comforting but completely ahistorical lie). This decision reflects decades of organizing by a passionate and savvy social movement that argues that fetuses have fundamental rights—and that, in fact, the Constitution does have a view on abortion, and that view is that abortion is unconstitutional. This movement has been brilliantly successful in its efforts to control the Supreme Court, influence the rules of campaign spending, and remake the GOP.

And America’s politics have changed too. Dobbs is a product of a deeply divided country. The laws emerging from conservative states would have once seemed politically toxic, but now the gap between red and blue states has widened to the point that once-unthinkable laws are the new normal. Dobbs shows that the Supreme Court reflects and reinforces the dysfunction and ugliness of our politics—and does so at a time when faith in democratic institutions is already fraying.

In some ways, this has long been true. Progressive scholars have criticized a system in which five judges can determine which rights we have. Others have written for years that courts are not engines of social change and do not meaningfully protect constitutional values, and that the Court has, throughout its many years, been regularly partisan and out of step with popular opinion.

But until recently, there were limits on what the Court would do. Historically, the justices seemed reluctant to do anything too radical, lest they cause a backlash that damaged the power and prestige of the institution.

One might have expected any such guardrails to be particularly effective at protecting Roe, the best-known of any Supreme Court decision, and one that many Americans seem to support. The Dobbs decision makes plain that those limits are gone. In their place is a kind of constitutional partisanship, dictated by the interpretive philosophies and political priors of whoever currently has a majority on the Court and nothing more.

The age of Roe was not a static one. In 1973, the Supreme Court declared a right to abortion—not just for the women who wanted an abortion but also in part for the doctors who performed the procedure. But within a matter of years, that consensus fell apart, and Roe became identified more narrowly with people who have abortions and the broader women’s movement. By peeling doctors away from the people Roe protected, lawmakers in red states and in Congress were able to sever abortion rights from access to the procedure, eliminating Medicaid reimbursement and then erecting a seemingly endless number of barriers to exercising the right that people theoretically had. More recently, the conversation about abortion has morphed once again: Reproductive-justice advocates, and especially activists of color, have argued that abortion should be understood neither as a matter of single-issue politics nor as a question of “freedom of choice” but as part of a broader social-justice agenda that helps everyone, and especially people of color, decide when to become parents and then receive support after they do.

Roe v. Wade is gone, but Dobbs is not the end of the story of abortion rights in America. If anything, the past five decades have demonstrated that the Supreme Court alone cannot forever put to rest the idea of a constitutional right to abortion. The Court has a lot of power, but so do the American people, and they still have a lot more to say.

By Mary Ziegler

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