As you surely know by now, they did it. In its ruling in Dobbs v. Jackson Women's Health Organization, the Supreme Court struck down both Roe v. Wade and Planned Parenthood v. Casey. Regardless of what side you take on this particular issue, Friday was a momentous day, and the consequences of the Court's decision will be felt for generations.
We have a fair bit to say on the subject, so we've broken our discussion up into parts. Away we go:
To start with, just for the record, here is the key passage from Alito's decision: "Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives."
To that, let us add the passage that, besides the one above, is going to have people on the left hopping mad:
We do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.
It is pretty brazen to claim that this decision somehow reflects the "principles of stare decisis." In fact, some might even call that gaslighting. Meanwhile, the notion that the Supreme Court cannot be bothered to concern itself with the impact of its decisions? That would be news to, say, Earl Warren or Felix Frankfurter or Oliver Wendell Holmes. Heck, it would be news to Ruth Bader Ginsburg, who departed the Court less than 2 years ago.
There was also a pretty significant concurrence from Clarence Thomas that we'll address later. For now, we'll note that there were a few changes to the final draft of the decision, but that it does not differ substantively from the draft that was leaked back in May. You will recall that Chief Justice John Roberts promised to use all the powers at his disposal to bring the leaker to justice. You might have also noticed that nary a word has been said on the subject since, despite there having been plenty of time to do Xerox forensics, or whatever it was that Roberts was planning to do. This suggests four possibilities to us:
We have no way to know which it is, but three of the four possibilities would mean that we're not going to be finding out who leaked anytime soon, or possibly at all.
As to the three liberals in the minority, they put up as good a rhetorical fight as they could in the dissent they co-signed (skip to page 148 of the PDF). Taking exception to the passage we note immediately above, the trio of Stephen Breyer, Sonia Sotomayor, and Elena Kagan decree:
After today, young women will come of age with fewer rights than their mothers and grandmothers had. The majority accomplishes that result without so much as considering how women have relied on the right to choose or what it means to take that right away. The majority's refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.
They also closed thusly: "With sorrow—for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent."
There aren't too many Supreme Court decisions whose impact is felt within just hours, but this isn't your everyday Supreme Court decision. Many states already had abortion laws on the books, or else "trigger laws" that were set to enact abortion restrictions as soon as Roe was struck down. The first state to seize its opportunity was Missouri. The state's AG Eric Schmitt (R), who just so happens to be running for the U.S. Senate, issued an opinion just minutes after the Dobbs decision came down announcing that the state's trigger law is now in effect.
In terms of the list of states that have banned abortion, or will do so, it's a little tricky because some are relying on existing laws from the 1960s that will presumably come back into effect, and some have trigger laws, and some have laws that were unconstitutional and were tied up in the courts but probably won't be anymore, etc. Ultimately, according to the Guttmacher Institute, there are 22 states where abortion will be illegal in short order, and another four that are nearly certain to enact a ban now that they can do so. Here's their map:
That's a total of 26 states, though Guttmacher may have erred in excluding Virginia, where Gov. Glenn Youngkin (R) has already announced he will pursue a ban on all abortions after 15 weeks. However, that is not a done deal because Democrats have a 21-19 majority in the state Senate.
Naturally, abortion clinics in various states on the map above have already suspended services or begun preparing to shut down. In the former category are all the Planned Parenthood clinics in Texas and in Arizona. In the latter category is the only clinic in North Dakota. Undoubtedly, there are others that have not yet made their plans public, but will do so very soon.
With that said, those who would like to see abortion remain legal are not keeping quiet. There were protests in cities across the nation, and even across the globe, yesterday, including New York City, Los Angeles, Chicago, Phoenix, Austin, Houston, Nashville, Kansas City, Topeka, Tallahassee, Miami, Oklahoma, Boise, New Orleans, Detroit, London, Toronto, Berlin, and Paris. The protests in Phoenix and Los Angeles became unruly enough that the police intervened to disperse the crowd. Of course, that's not going to dissuade people from taking to the streets again and again and again. The pro-choice group We Won't Go Back is taking the lead in organizing protests this weekend, and in future weeks.
Because tensions are very high, Republican politicians, like Sen. Ted Cruz (R-TX), are warning that things could get very violent. The Department of Homeland Security agrees with Cruz on that point, and issued a bulletin to that effect yesterday. Where they disagree is the question of who might perpetrate the violence. Cruz (and other prominent Republicans) say it's going to come from the "far left." DHS, by contrast, says it's going to come from "domestic violent extremists [who] are racially motivated with perceived grievances." One of these warnings is based on supposition; the other is based on cold, hard evidence gathered after the Dobbs decision was released in May. You can guess which is which.
While individuals take to the streets in protest, there is also much work going on to keep abortion as safe and legal as is possible. A total of 16 states have passed laws that guarantee access to an abortion, regardless of whether or not Roe is on the books. Those states are also taking steps to protect women who might visit from other states. Connecticut, for example, passed a group of such laws several weeks ago, while in California, Gov. Gavin Newsom (D) signed a bill yesterday afternoon.
A key tool here, especially for women in red states, will be abortifacient pills. Indeed, even before Roe was struck down, about 54% of abortions were accomplished via these medications. Undoubtedly, that number will grow. AidAccess has already announced that it will ship mifepristone and misoprostol anywhere in the U.S. for $150 regardless of the recipient's home state's abortion restrictions, and that they will provide the pills proactively (in other words, the recipient need not be already pregnant). The site ineedana appears to have made a similar commitment (though both sites are getting so much traffic right now, it's hard to access them in order to confirm). It is true that many states (like Texas) have endeavored to ban abortifacients sent via mail, but it's also true that will be very difficult to enforce. Possibly illegal, in fact, as state officials are not allowed to interfere with the U.S. Mail.
Naturally, every politician in the land (with one exception) shared their views on the Court's decision. We'll start with Joe Biden, since he's the sitting president and all. He observed, quite correctly, that there is little that he or the current Congress will be able to do to codify Roe, and that doing so will require the Democrats to gain a firmer grip on the legislature in the fall elections (more below). "This fall, Roe is on the ballot," the President declared "Personal freedoms are on the ballot. The right to privacy, liberty, equality, they're all on the ballot." His remarks were delivered about an hour after the decision was announced, and surely must have been written in advance.
Vice President Kamala Harris is on the same page as Biden; in her (presumably also pre-written) remarks, she lamented that "Millions of women in America will go to bed tonight without access to the healthcare and reproductive care that they had this morning," while also promising "This is not over."
Also speaking up was former Democratic senator from Missouri Claire McCaskill. She works for MSNBC now, and she appeared on that channel to opine thusly:
I think politically, one thing that is very dangerous to success is being an extreme person, holding very extreme views. And what this movement has done is they have gone for it. They have done very extreme things in my state and many others. The Democrats may have headwinds when it comes to inflation and gas prices, but extremism is powerful. They can run against these government-mandated pregnancies, and what is being done with guns, the extreme positions being taken. I think it might work.
We pass McCaskill's remarks along because the state she represented was and is pretty red, and so she presumably has a pretty good sense of how many otherwise Republican voters might be open to defecting over the events of the past week. In other words, if she thinks the Democrats now have a puncher's chance, that's worth paying attention to.
Moving along to a couple of current senators, Joe Manchin (D-WV) and Susan Collins (R-ME) are on a lot of people's sh** lists right now, since they voted to approve Neil Gorsuch and Brett Kavanaugh and then afterward told reporters that the justices' views on abortion wouldn't matter because they promised that Roe is settled law. Oops! Yesterday, both of the senators sputtered that they were shocked, shocked by yesterday's news. Manchin said he is "deeply disappointed" in the two justices, and that he is "alarmed they chose to reject the stability [Roe] has provided for two generations of Americans." Collins decreed that "This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon," and that the ruling is "a sudden and radical jolt to the country that will lead to political chaos, anger, and a further loss of confidence in our government." Seems like crocodile tears to us, since the plan here was no secret, but perhaps readers will feel otherwise.
Most of Collins' fellow Republicans, of course, were delighted by the news. Gov. Ron DeSantis (R-FL) said in a statement that the "prayers of millions have been answered" and that "For nearly fifty years, the U.S. Supreme Court has prohibited virtually any meaningful pro-life protection, but this was not grounded in the text, history or structure of the Constitution. By properly interpreting the Constitution, the Dobbs majority has restored the people's role in our republic and a sense of hope that every life counts." It's always interesting how "rulings I agree with" are "proper" interpretations while "rulings I disagree with" are "judicial activism."
Also piping up was DeSantis' potential 2024 opponent, Donald Trump. The former president had largely remained silent on abortion-related issues, but not anymore, it would seem. He said that the Dobbs decision and others from this week "were only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong Constitutionalists confirmed to the United States Supreme Court." He also said that "God made the decision" to overturn Roe. We have no doubt that Trump believes he deserves all the credit. And we also have no doubt that he does not believe for a minute that God had something to do with it. Well, unless you assume that he regards himself as God, then it all works.
We don't want to inundate you with politicians' responses, so we're going to stop with that septet. If you'd like to read more, we tracked down responses from an additional dozen Republicans and an additional dozen Democrats. You can click on the links if you would like to read that person's response/statement:
Democrats (and one Democratic Socialist)
- Former vice president Mike Pence
- Senate Minority Leader Mitch McConnell (KY)
- Ted Cruz
- Sen. Lindsey Graham (SC)
- Sen. Josh Hawley (MO)
- Sen. Lisa Murkowski (AK)
- Sen. Mitt Romney (UT)
- Sen. Rick Scott (FL)
- House Minority Leader Kevin McCarthy (CA)
- Rep. Liz Cheney (WY)
- Rep. Elise Stefanik (NY)
- Gov. Greg Abbott (TX)
- Former president Jimmy Carter
- AG Merrick Garland
- Senate Majority Leader Chuck Schumer (NY)
- Sen. Bernie Sanders (I-VT)
- Sen. Kyrsten Sinema (AZ)
- Speaker of the House Nancy Pelosi (CA)
- Rep. Pramila Jayapal (WA)
- Rep. Alexandria Ocasio-Cortez (NY)
- Gov. Kathy Hochul (NY)
- Gov. Gavin Newsom (CA)
- Gov. Gretchen Whitmer (MI)
- Mayor Eric Adams (New York City)
They largely said what you would expect them to say, with the possible exception of Murkowski, whose statement makes clear that she's not terribly happy about the Supreme Court's decision. Incidentally, the politician we referenced above, the one from whom we could find no statement? George W. Bush. His Twitter account, which is run by the Bush center, was active yesterday, but there was nary a tweet on Roe, nor did the former president issue a statement, as far as we can tell. Interesting, since he appointed the justice who actually wrote yesterday's decision.
Let's take a look at the Republican side of this first, since that is simpler. As we head into the 2022 midterms, and into the 2024 presidential election, the Party has two obvious problems when it comes to abortion. The first is that the anti-abortion position is in the minority. There are a lot of polls on this subject, and the results vary a fair bit based on exactly what is being asked and exactly how the questions are worded. But, roughly speaking, about 85% of Americans would like abortion to be legal in some circumstances, about 60% want it to be legal in all or most cases, and about 55% identify as "pro-choice." Keeping in mind that in each of these polls, some respondents expressed no opinion, that means that people who support the old status quo outnumber people who support the new status quo roughly 2-to-1.
The Republicans' other problem is that, in addition to being in the minority on this issue (and, frankly, on most issues), their base is not in lockstep on the specifics. This is going to put GOP politicians, particularly those who are eyeing a 2024 White House run, in a delicate position. Among the questions that are still up for debate in conservative circles:
There are a lot of Republican voters who demand the most extreme answers to these questions (to wit, "from conception," "yes," "yes" and "yes"), and who might stay home on Election Day if the politicians don't tell them what they want to hear. However, the extreme position is, as we note above, very much in the minority, and runs the risk of alienating moderate Republicans/independents/conservative Democrats, all of whom might vote Democratic if a politician takes a position they deem to be too fanatical. In a very red congressional district, there's no real problem. However, it will not be easy to run a statewide campaign, or a national campaign, and somehow keep everyone happy. What it amounts to is that the Republicans will be much better off if the 2022 campaign is about inflation, gas prices, mask mandates and the like, and abortion/guns are an afterthought.
And that brings us to the Democrats, who need the exact opposite situation. The party knew this ruling was coming, and has been preparing, as we noted earlier this week. The blue team is making those preparations with a keen awareness that it will be necessary to tailor their message, since some districts and states are much more pro-choice than others. That said, SCOTUS' recent decisions are so over-the-top, and could potentially do so much damage, that it could give the Democrats a fair bit of margin for error.
Beyond that, there are a number of concepts that Democratic politicians will have to commit to, and will have to sell their base on, if they hope to bounce back from what happened this week. To start, it is clear that the Supreme Court is now just another partisan organ, and that the notion that the justices somehow dispense dispassionate and Solomon-like wisdom from on high is as dead as a doornail (if it was ever alive). That means that Democratic politicians, from Joe Biden on down, will have to make clear commitments to killing the filibuster and to changing the way the Court operates. Mandatory retirement ages? Turning the "Supreme Court" into a pool of 20-30 judges, like other levels of the federal system, where the justices for each case are picked at random and it's much harder to game the system? Expanding the number of seats on the Court? Stripping much of the Court's authority and giving it to a newly created constitutional court? Giving every president a set number of appointments per term? One or more of these should be on the table, and should become a core Democratic plank.
The Party will also have to make it very clear to its supporters that this is a multi-year (or multi-generation) fight, and that it's necessary to play the long game. Many people (including one of the readers whose comment is running tomorrow) are observing that if the folks who voted for Jill Stein in 2016 had cast their votes for Hillary Clinton, then Clinton would have won Michigan easily and Wisconsin and Pennsylvania with small margins, which would mean Gorsuch, Kavanaugh, and Amy Coney Barrett would not be on the Court and Roe would still be the law of the land. Put another way, the party has to sell its base on the argument that the right to nominate Supreme Court justices is such a big prize, at least as the Court is currently constituted, that consideration has to dwarf nearly all other considerations, including "the candidate is not liberal enough," "the candidate is too liberal," "the candidate is not exciting," etc.
All of this said, for the upcoming midterm cycle, the Democrats' pitch should actually be pretty simple. Here's how actor/director (and outspoken progressive) Rob Reiner put it on Twitter yesterday:
Don't despair. Fight back!! Hold the House, add 2 seats to the Senate, kill the filibuster, codify Roe, and add seats to SCOTUS. 2022 will determine it all. VOTE!!!— Rob Reiner (@robreiner) June 24, 2022
Our guess is that picking up the Senate seats is considerably more likely than not at this point. It's the House that is going to be very tough, primarily because there are so few swing districts where abortion anger might cancel out anger about the economy. That said, for what it is worth, the Democrats' online fundraising arm ActBlue took in $2 million in the first hour after the Dobbs decision was announced, and $18 million in total on Friday.
There are already plenty of pieces out there asserting confidently that abortion isn't going to save the Democrats (see here and here for examples). These are ill-considered. There is no meaningful historical parallel for what just happened, and no way to predict how things will play out. If this was a standard election, the Democrats would be a mortal lock to lose the House. But, with this week's decisions on guns and abortion, it is no longer a standard election. The blue team has been handed a potential lifeline, and if they use it well, it could be a game-changer. Time will tell.
As we noted at the outset of this item, there will be big-time consequences as a result of this ruling, both political and otherwise. We would be remiss if we did not begin by pointing out that one of those consequences is that there will be much suffering as a result of SCOTUS' decision. Among the ways that will be manifest:
These things won't happen in all cases, of course, and some of these things will only happen in some states. On the other hand, it is also the case that the list is not exhaustive.
Now, moving on to the political angle, the Dobbs decision is certain to make the political polarization worse. Quite a few pundits, invariably on the right, have suggested that once Roe is overturned, abortion law will be "settled," and the nation will never have to wrestle with this issue again. That is laughable. Even if we hadn't laid it out above, each reader knows there is zero chance that the pro-choice forces are going to just shrug and say "Well, what're ya gonna do?" There is going to be a fierce backlash on many fronts, some of which we've identified, some of which will only reveal themselves in upcoming months and years.
Further, just as people on the left aren't going to leave this alone, neither are people on the right. As we note above, there are many on the right who feel they've won the battle, but they haven't yet won the war. And so, they are eyeing a nationwide ban on abortions. Mike Pence called for one yesterday, and so did Kevin McCarthy and other House Republicans. That's not plausible as long as the filibuster is in place, but is there anyone who really thinks the filibuster is likely to survive if getting rid of it would allow the Party to impose abortion restrictions nationwide?
And it doesn't stop there. In his concurrence, Clarence Thomas pulled the same trick he pulled in his opinion about the New York gun law, and slipped in a passage that is both brief and momentous: "We should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell." In other words, the argument for Roe, rooted in the Fourteenth Amendment, has been found invalid. Consequently, Thomas thinks the Court should consider striking down other cases that were decided on the same basis, including the ones that legalized contraception, struck down sodomy laws, and legallized gay marriage. Somehow, however, the justice forgot Loving v. Virginia, which was decided on the same basis, and which legalized interracial marriage. Wonder how that happened...
Meanwhile, as this vicious culture war unfolds, Americans are going to continue to sort themselves into "blue" and "red" states. There is zero question that many people are going to flee red states, or at least avoid moving to them, for fear of getting stuck with an unwanted pregnancy, or simply because they don't want to be a part of that sort of political culture. Josh Hawley addressed this yesterday and said that, in his view, it's a good thing, since if red states get redder, it will make it easier for the Republican Party to hold on to the Senate and the Electoral College. Maybe so, although they're barely holding on to those things now (in fact, not at all, at the moment), and if fanaticism permanently pushes, say, Pennsylvania, North Carolina, Georgia and Arizona into the Democratic column, the GOP would be in big trouble. Note that all four of those states have lots of suburbs, and thus lots of college-educated suburban women.
Hawley also raised a related point, declaring:
For years on the conservative side of the ledger, social conservatives have been told that they had to form an alliance with the corporatists, the neoliberals, in order to get elected. I think that alliance is over today. There's no reason for social conservatives to go along with a corporatist agenda that frankly never had much support in the country.
Hawley is, of course, taking a swipe at perceived "liberal" corporations like Disney. And, as if on cue, Disney (and Netflix and Sony and a bunch of others) announced that they will cover travel costs for employees who have to travel out of state to get an abortion. That is an easy policy to adopt, and so can be announced and implemented quickly. Also a pretty easy policy to adopt and implement: rerouting donations from one political party to the other. And eventually, if they're not there already, some companies will decide they just don't want to do business in states that are basically theocracies. That makes it hard to attract young, educated employees, and it also introduces uncertainty, since today's Republican politicians are often loose cannons (see Ron DeSantis vs. Disney). Undoubtedly, the base loves it when Hawley rails about the corporatists. But things won't be so great for the Republican Party or the red states if most Fortune 500 companies head for the (blue) hills.
In addition to the impact on partisan politics, this week's decisions are the culmination of several years' worth of events that have left the Court's reputation in tatters. It's one thing to issue a decision that is disagreeable but well-reasoned. It's another thing to issue forth with decisions that are full of logical holes, disingenuous or dishonest assertions, and that are utterly inconsistent with the decision you issued... one day earlier. A Gallup poll released this week reveals that just 25% of Americans have confidence in the Supreme Court. Frankly, we're a little surprised the number is that high.
As we have pointed out many times, the Supreme Court commands no enforcement apparatus—no troops, no substantive police force. It is reliant on the executive branch to enforce its decisions and, even more importantly, it is reliant on states, counties, cities, and individuals to honor those decisions in deference to the court's moral authority. But if the Court is deemed to have no moral authority, then why should their decisions be honored? The famous example of this, which we've pointed out, is Dred Scott, which was utterly ignored by Northern states. But there are many other examples, and as we note above, countless people are already working to subvert the Dobbs decision in any way they can.
Meanwhile, the 5-6 conservative justices apparently don't care, but they have made a joke of stare decisis. It is true that the Supreme Court has reversed its own decisions many times, most famously in Brown v. Board of Education. That is because a reversal makes sense when it becomes clear that the past decision is not working out as intended (e.g., separate is not, actually, equal), or is otherwise doing enormous harm. Otherwise, because people build their lives, their businesses, their future plans, etc. around the status quo, the Court has a duty to avoid yanking the rug out from under them. Or, at least, it had a duty. The Dobbs decision is not based on new information, or on harms being done that were not foreseen in 1973. It is based on the current justices not liking the reasoning of the justices from half a century ago. And once that Pandora's Box is opened, then every Supreme Court decision is open to reconsideration and revision. Maybe someone will soon challenge Marbury v. Madison, for example.
The satirical website The Onion, which always seems to rise to these sorts of occasions, was savage in its mockery of the Court. Here's their front page, as of this morning:
We suspect that the Court is going to be the butt of many, many more jokes in coming weeks and months.
And finally, let's talk about one last consequence. Those world leaders who spoke up yesterday were in agreement that the Supreme Court blew it. Canadian Prime Minister Justin Trudeau called the Dobbs decision "horrific," French President Emmanuel Macron lamented the "women whose freedoms are today challenged," and UK Prime Minister Boris Johnson described it as "a big step backwards." You know something's gone very wrong when BoJo is looking down his nose at you.
Presumably these men, and the other world leaders who spoke up yesterday, were expressing, in part, their personal views on the situation. But we suspect they are also worried and/or irritated that SCOTUS has created a new headache for them to deal with. Since 1994, only four countries have dialed back abortion rights: El Salvador, Nicaragua, Poland and the United States. Three of those are relatively small fish, while the U.S. is a whale. And so, it is expected that Dobbs will encourage anti-abortion activism worldwide. In fact, that process already appears to be underway in Canada and in Australia, among other places. So, the Court's decision could serve to make politics nastier worldwide, in addition to in the U.S.
And there you have it: Our initial thoughts about the Roe decision. Undoubtedly, this topic is going to come up a lot for the rest of this week, month, and year. (Z)
Now that you've read our thoughts, let's take a look at some comments from various folks in the media. It was not easy to wade through everything. To take just one example, take a guess how many items Breitbart produced yesterday lauding the Dobbs decision. We'll tell you at the end.
In answer to the question above, Breitbart had a staggering 67 opinion pieces celebrating the ruling. Others were also quite busy, although outlets like CNN (at least 120 pieces) mixed a moderate amount of opinion with a large amount of factual reporting. So, we consider Breitbart's output to be the more remarkable.
We actually planned to run a bunch of reader comments today and also some Roe-centric questions and answers. But this post is already more than 8,000 words and is ungodly late. So, we'll do those things tomorrow. (Z)