The Two Year Anniversary of Dobbs v. Jackson Women’s Health Organization

Letters from An American,

Two years ago today, on June 24, 2022, the U.S. Supreme Court handed down the Dobbs v. Jackson Women’s Health Organization decision, overturning the 1973 Roe v. Wade decision that recognized a woman’s right to terminate a pregnancy. The vote was 6–3.

The three justices appointed by former president Trump joined Samuel Alito, Clarence Thomas, and Chief Justice John Roberts to strip a constitutional right from the American people, a right we had enjoyed for almost 50 years, a right that is considered a fundamental human right in most liberal democracies, and a right they had indicated they would protect because it was settled law. For the first time in our history, rather than conveying rights, the court explicitly took a constitutional right away from the American people.

Andy Kroll, Andrea Bernstein, and Ilya Marritz of ProPublica reported that the night before the decision came down, 70 or so partygoers, including two dozen state and federal judges, met to drink champagne and eat fine food at the Maine home of the man who had hatched and then executed a plan to stack the courts with extremist judges: Leonard Leo. It was Leo who had helped pick or confirm all six of the justices who would, the next day, announce to the world they were overturning Roe.

In the decision, written by Alito, the court said that the right to determine abortion rights must be returned “to the people’s elected representatives” at the state level. This construction of American law is central to the right-wing project of dismantling the federal government which, under the Fourteenth Amendment, is charged with protecting equal rights in the states. Centering the states, which determine who can vote within them, enables a minority to dominate the majority. In this case, a strong majority of Americans has always backed abortion rights while only about 10% of Americans wanted a complete ban on the procedure.

In the late 1970s, presidential hopeful Ronald Reagan courted religious traditionalists who objected to women’s equality with the promise of ending abortion access. Indeed, in her first statement on abortion in January 1972, right-wing activist Phyllis Schlafly focused not on fetuses but on women who wanted equal rights.

“The ‘women’s lib[eration]’ movement is not an honest effort to secure better jobs for women who want or need to work outside the home,” she said. It “is a total assault on the role of the American woman as wife and mother, and on the family as the basic unit of society. Women’s libbers are trying to make wives and mothers unhappy with their career, make them feel that they are ‘second-class citizens’ and ‘abject slaves.’ Women’s libbers are promoting free sex instead of the “slavery” of marriage. They are promoting Federal ‘day-care centers’ for babies instead of homes. They are promoting abortions instead of families.”

Business leaders who wanted to slash taxes and government regulations led the Reagan coalition, but winning elections always depended on the votes of racists and the religious traditionalists who opposed women’s rights. But since a majority of Americans has always supported the protection of access to abortion, Republican leaders generally promised to end abortion without intending actually to do it.

But the extremist religious judges Leo helped Trump put in place had their own agenda.

As soon as the court overturned Roe v. Wade, Republican-dominated states began restricting abortion access. Now, two years later, 14 states ban abortion entirely. Seven others have restrictions that would have been unconstitutional two years ago.

The overturning of Roe v. Wade upended American politics. The majority of Americans alive today have always lived in a country with abortion access recognized as a constitutional right, and had not thought they could lose it. Exactly what that loss means became clear just days after the Dobbsdecision, when news broke that a ten-year-old rape victim had been unable to obtain an abortion in Ohio and had to cross state lines to Indiana, where the state attorney general, Todd Rokita, publicly attacked the doctor who treated the girl. Similar stories, as well as those of women who desperately needed abortions to save their lives or fertility, have driven support for abortion higher than it was before Dobbs.

As state laws prohibiting abortion took effect, voters worked to protect abortion rights. In seven states, including Republican-dominated Kansas, Kentucky, and Ohio, voters have protected abortion rights when they were on the ballot. Pollster Tom Bonier today called abortion rights “the most powerful single issue in politics.”

Bonier recalled looking at the Kansas vote and finding such a surprising statistic he thought he had miscalculated. After Dobbs, almost 70% of the people in that state registering to vote were women. He said he has “never seen a registration surge among any specific group like this before, and [doesn't] expect to again.” He went on to find substantial gender gaps in registration in states where access to abortion was at risk, but not in states where it seemed secure.

In 2022, Bonier said, “[i]n states and races where abortion rights were perceived as at stake, Democrats overperformed massively,” including in Michigan, Pennsylvania, Wisconsin, and Arizona, but in states like New York and California, where abortion rights are protected, “the election was as you would have expected in a ‘normal’ midterm.” Bonier added that abortion rights “is likely more salient now than it was in 2022.”

As the votes indicate, Dobbs has created a huge problem for Republicans, especially as Trump continues to boast that he is responsible for overturning Roe, a boast that the Biden campaign is highlighting. Voters eager to protect abortion rights are moving away from the party toward a more moderate and popular position on abortion.

It has also created a problem for the party on the hard right. Having lost the abortion issue as a way to turn out voters, leaders are whipping up the party’s base with ever-increasing extremism. In the realm of reproductive rights, that extremism has led MAGA Republicans to call for national bans on abortion, contraception, and in vitro fertilization (IVF). More generally, it has increasingly made them call for violence against their opponents. On June 21, for example, Representative Chip Roy (R-TX) posted on social media: “I do want to ‘ethnic cleanse’ by deporting white progressive Democrats—with a special bonus for rich ones with an Ivy League degree. I really do not like ‘those people.’”

Those extremists appear to be threatening Trump from the right, possibly considering a move to back Trump’s conspiracy theorist former national security advisor Michael Flynn at the July Republican National Convention. Yvonne Wingett Sanchez and Isaac Arnsdorf of the Washington Postreported Saturday that there has been a revolt against Trump in the Arizona delegation to the Republican National Convention, some of whom apparently worry that Trump has been captured by the “deep state” and is not extreme enough for them.

The promise to return decision making to the states has always been an attempt to enable a minority to impose its will on the majority, but the Dobbsdecision revealed that minority to be so extremist it appears to have engaged, and enraged, people who before it were not paying much attention to politics. In the Dobbs decision, Alito wrote: “Our decision returns the issue of abortion to [state] legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.”

Amen.

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Notes:

https://www.propublica.org/article/we-dont-talk-about-leonard-leo-supreme-court-supermajority

https://www.guttmacher.org/2023/12/state-policy-trends-2023-first-full-year-roe-fell-tumultuous-year-abortion-and-other

https://awpc.cattcenter.iastate.edu/2016/02/02/whats-wrong-with-equal-rights-for-women-1972/\

https://www.cnn.com/2020/08/04/us/millennials-outnumber-boomers-trnd/index.html

https://law.yale.edu/sites/default/files/documents/pdf/Faculty/Siegel_BeforeAndAfterRoeVWadeNewQuestionsAboutBacklash.pdf

https://apnorc.org/projects/most-americans-support-legal-abortion-with-some-restrictions-ap-norc/

https://www.npr.org/2022/07/13/1111285143/abortion-10-year-old-raped-ohio

https://www.pbs.org/newshour/health/support-for-abortion-rights-has-grown-in-spite-of-bans-and-restrictions-poll-shows

https://www.cnn.com/2024/03/06/politics/kate-cox-texas-abortion/index.html