Roe Has Fallen. What Happened? What Now?

This article is an update and supplement to our May 3 article Overturning Roe: An Explainer, which responded to the unofficial leak of an earlier version of today’s Supreme Court Dobbs opinion.

Thanks again to Neema and Anne-Marie for their help.

The Supreme Court overturned Roe today—the fifty-years-old constitutional right to have an abortion.

Today, the Supreme Court officially released its opinion in Dobbs v. Jackson Women’s Health—a case centering on a Mississippi abortion restriction that violated existing law.

It feels like we’ve already talked about this because, on May 2, Politico reported a leaked transcript of today’s decision—an early, unofficial version that was written in February—that gave us a good look at what today’s decision was likely to be. It’s very unusual for Supreme Court decisions to leak early; the Court has strong protections against it. But it’s not unheard of. Coincidentally, Roe v. Wade itself was leaked prior to its official release in 1973.

Abortion rights—before today—came from the Constitution. Rather than a law passed in Congress, abortion rights were laid out in a series of Supreme Court decisions starting with Roe v. Wade in 1973. In a nutshell, the cases determined that a person’s right to an abortion was grounded in the right to privacy—the right to make healthcare decisions without undue governmental intervention—a right that the Court described as deeply rooted in America’s history and tradition.

Roe, a case overturning a then-Texas law that restricted abortions, was the first to articulate this right (the right to have an abortion through the right to privacy). In Roe, the Court broke a pregnancy down into trimesters and, through this lens, weighed the right to privacy against the government’s interest in protecting life. It held that fetuses in the first two trimesters are not viable—could not survive outside the womb (a rough approximation of medical knowledge at the time)—so the government’s interest in protecting life was not as strong as a person’s right to privacy (and to have an abortion). But, the Court held, because fetuses could survive outside the womb in the third trimester (again, a rough approximation), the government’s interest in protecting life was sufficiently strong such that states could decide for themselves whether and how to restrict abortions.

This was the law for nearly two decades when, in 1992, the Court issued its opinion in Planned Parenthood v. Casey. The Casey Court agreed with Roe in spirit—that there was a right to have an abortion that was grounded in privacy—but it rejected the trimester framework. Instead, Casey articulated the undue-burden test, based on the viability of the fetus: Restrictions were unconstitutional if they “plac[ed] a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Casey’s undue-burden test was the law until today—all states had to make abortion restrictions under Casey, and they varied widely in that framework. (Several states had recently passed laws that were illegal under Casey, but I’ll discuss that later.) Eight states share the least restrictive end, where abortion is allowed at all stages of pregnancy: Alaska, Colorado, Delaware, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. And Texas is the most restrictive state: it cuts off abortion after six weeks from the pregnant person’s last period (illegal under Casey, but no longer illegal under Dobbs).

Conservative states had, in recent years, begun a new front of resistance to Roe by passing laws they knew were illegal at the time, designed to go to the Supreme Court for a chance to overturn Roe and Casey.

In 2019, Alabama was the first to all but place a blanket ban on abortions. Since, nine states followed suit with illegal abortion restrictions: Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, Ohio, Tennessee, and Texas. Each of these laws were illegal until today, when the Court’s ruling under Dobbs rendered all of them—save Texas’s—now legal. (Texas’s novel enforcement mechanism is still under review in federal court.)

Mississippi’s law, at issue in today’s Opinion, makes abortion illegal after fifteen weeks—roughly two months before what would’ve been a legal restriction under Casey. Jackson Women’s Health, Mississippi’s sole abortion provider, sued over the law and won in both the federal district court and Court of Appeals for the Fifth Circuit (the district court held, and the appellate court affirmed, that the restriction is illegal under existing law). Today, the Court overturned the lower courts and will allow the Mississippi law to take effect.

Dobbs removes the right to have an abortion by overturning Roe and Casey. Justice Alito, who wrote the majority Opinion, says he’s not convinced that abortion is or was deeply rooted in American history or tradition. He was joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett.

The major difference between Roe and Dobbs is the level of specificity at which they examine how deeply rooted the right to an abortion is in American history and tradition. Roe says the right to have an abortion is wrapped up in the right to privacy a person has when making healthcare decisions with their physician; so, the Court examined how deeply rooted this right to privacy is in American history and tradition (rather than abortion specifically). Dobbs, on the other hand, says that’s wrong; the Court must examine abortion specifically—and, Dobbs says, there was never a right to have an abortion before Roe and, in fact, most states and the common law throughout history made abortion illegal.

Now, with Roe and Casey overturned, we revert to the pre-1973 landscape: All states can restrict abortion as they see fit, with little to no federal rule or review.

Justice Alito uses the Due Process Clause to strike down the right to have an abortion. There’s a reason: the right to have an abortion exists because of the Due Process Clause.

The right to have an abortion is not listed in the Constitution. Many rights are not—the right to marry (and to marry someone from any race or gender or sex), the right to have sex with whom you wish, the right to be treated the same as anyone of another race—but they are rights nonetheless because of the Due Process Clause and the Equal Protection Clause. Both clauses recognize, echoing the Ninth Amendment, that there are many unwritten rights central to being an American, in our history and tradition and in our ideals as a country. And though the Clauses may even overlap on the recognition of certain rights, the way each clause recognizes rights is different from the other.

The Due Process Clause (DPC) is the heavy lifter of countless rights we recognize in America. It’s in the Fifth and Fourteenth Amendments, and it ensures that the government cannot deprive anyone of life, liberty, or property without due process of law. The right is broken down into many elements—with interpretations for virtually every word in the Clause—and wrapped into two major components: substantive due process and procedural due process. And, most relevant, rights exist under the DPC only when they are “deeply rooted in [America’s] history and tradition.” Examples include the right to marry, the right to have children, and the right to privacy.

And the Equal Protection Clause everyone knows—or, at least, its effects. The Equal Protection Clause springs from the Fourteenth Amendment, passed and ratified shortly after the Civil War, and it guarantees that everyone in America has the right to be treated equally before government, the right to “equal protection of the laws.” The Equal Protection Clause, or EPC in short, creates a laundry list of rights, many of which were not recognized in American history or tradition. This is necessarily true: Congress created the EPC after the Civil War to forever establish that equality—though not always part of our history and tradition—is central to American life moving forward.

Some of our strongest rights come from the DPC and the EPC working together: the EPC ensures that all of our deeply rooted rights under the DPC are applied equally to everyone—in other words, it has allowed the Supreme Court to create new rights, rather than recognizing deeply rooted ones, for those who are not being treated equally. See, for example, the Court’s decision in Brown v. Board of Education, which dismantled racial segregation, and Obergefell, which legalized gay marriage. If white people have the right to certain education, and if straight couples have the right to marry under the DPC, then the EPC ensures that people of color have the right to the same education, and same-sex couples have the right to marry, too.

The right to have an abortion—before today—was a privacy right under the Due Process Clause but not the Equal Protection Clause. While this is not particularly intuitive—most people would assume the right to have an abortion would be rooted in equality—it was the law because of Roe. The Supreme Court heard argument for and issued its ruling in Roe in 1973. At the time, the Equal Rights Amendment of 1972 was gaining steam and, to all observers at the time, appeared to be on a fast track to ratification while the Court considered Roe. This leads to one explanation for Roe’s curious holding: the Court did not want the Equal Rights Amendment to fully legalize abortion, so, the Court reframed the right to have an abortion as a right to privacy rather than a right to equality. This was a problem because the right to privacy under the DPC was still controversial to some, only first recognized less than ten years earlier, in 1965. Today, we reap the consequences of the Court’s decision to frame the right to have an abortion as a right to privacy under the DPC rather than a right to equality under the EPC.

Barely. Other than a few tweaks, the Dobbs majority Opinion is identical to the leaked Alito draft. The arguments and holding are the same.

But, we did learn new things. The leak in May was only the majority opinion—it didn’t include the other Justices’ concurrences and dissents.

When the Supreme Court issues an opinion, its holding (its decision) is law. But a majority opinion is not always the only thing the Court will release with its decision—it also releases any concurrences and dissents written by the Justices.

Opinions are the final decision of the Court, written usually by just one Justice and joined (agreed to) by a majority of the Justices. Concurrences, on the other hand, are the non-majority writings of Justices who agree with the Court’s majority opinion, but they have something extra or different to say. Dissents are the writings of those Justices who disagree with the Court’s final decision.

In Dobbs, there are three concurrences (from each of Chief Justice Roberts and Justices Kavanaugh and Thomas) and one dissent (from Justices Breyer, Kagan, and Sotomayor).

Chief Justice Roberts concurred but did not join the majority Opinion. He said that he agreed that the Court should overturn Roe and Casey, but he disagreed with the extent to which the majority did so. In keeping with Court tradition not to decide more than it needs to in a particular case, Chief Justice Roberts says he would allow Mississippi’s law to take effect, but still require states to give women a reasonable amount of time in which they can decide to have an abortion and do so. He said that Mississippi’s fifteen-week restriction is enough time for that.

Justice Kavanaugh’s concurrence largely reiterates the majority Opinion, but he puts particular focus on his view that the Constitution is “neutral” on abortion—and he welcomes voters to go through Congress and state legislatures to legalize and restrict abortion as they see fit. Also of note, Kavanaugh makes clear that he would vote strike down laws preventing people from traveling across state lines to have abortions (under the constitutional right to interstate travel) and laws criminalizing abortions that occurred before Dobbs (under the Due Process Clause and the Ex Post Facto Clause).

Justice Thomas’s concurrence goes farther than any other’s. He clearly states that he believes substantive due process does not exist, and he would like to revisit (and overturn) significant past decisions including Griswold (the right to contraceptives for married couples), Lawrence (the right to have same-sex intercourse), and Obergefell (the right to same-sex marriage).

Dobbs is almost certainly insufficient to support a future overturning of Loving, Lawrence, and Obergefell. The right to have an abortion was a prisoner to its history. As discussed above, Roe held that abortion rights sounded under only the right to privacy under the DPC and not the EPC.

But Loving and Obergefell were decided on more than just the right to privacy under the DPC. The right to privacy is young, first recognized in only 1965, but the right to marry is older than America itself. The Supreme Court recognized that it’s a right under the DPC because it’s very deeply rooted in our history and tradition. And, because straight people have the deeply rooted right to marry, the EPC ensures that same right applies equally to everyone else (even if the right isn’t deeply rooted for everyone else). The right to marry interracially (in Loving) and same-sex (in Obergefell) did not need to be deeply rooted in American history and tradition because of the EPC. As Obergefell explained (while referencing Loving), “With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: ‘To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.’”

This is not to say that the Court’s conservative wing will not try to overturn these cases, and more. In fact, Justice Thomas is very clear in his concurrence that he intends to try. But the likelihood of their success is low. Justice Alito’s leaked opinion went to great lengths to establish, however incorrectly, that abortion rights exist under only the DPC and not the EPC—and this agreed with fifty years of Court precedent—which meant Alito could overturn them by showing they were not deeply rooted in our history and tradition. This simply does not apply to Loving and Obergefell (both of which very explicitly apply the EPC, and thus do not need to be deeply rooted), as well as other landmark cases that many believe may be at risk.

But, as hinted above, the right to privacy is on shaky ground. While the Court is very unlikely ever to find that the right to marry is not deeply rooted in our history and tradition, it’s possible that today’s conservative Court could revisit and strike down the relatively young right to privacy (including the right to contraceptives). Justices Alito and Kavanaugh make clear in their writings today that abortion is simply different than any other right—it’s the only right that’s balanced against the destruction of fetal life, in their terms. They adamantly say that, because of this, Dobbs is not precedent for overturning Griswold. In fact, even Justice Thomas admits Dobbs can’t be precedent to revisit it. But Justices Alito and Kavanaugh—while not explicitly calling to revisit Griswold like Justice Thomas—notably skirt the issue altogether.

Lawrence is complicated. Like abortion, the Supreme Court decided that the right to same-sex intercourse sounds under the right to privacy. But, even if the Court strikes down the right to privacy, it’s unlikely the Court would overturn Lawrence—or at least its outcome if not its reasoning—because the right to same-sex marriage in Obergefell necessarily requires the right to same-sex intercourse.

Dobbs does not outlaw or criminalize abortion. As Justice Kavanaugh points out, Dobbs returns us to pre-1973 constitutional abortion jurisprudence: the constitution says nothing about abortion, now. So, while there is no longer a constitutional right to have an abortion, Congress has the power to create a federal abortion standard that either applies equally in all fifty states or sets a baseline on which all states must make their own regulations. And, on the other hand, Congress could decide to make a national abortion restriction.

Democrats currently control the House, Senate, and presidency, and many have voiced support to pass a law codifying Roe (making it law) or otherwise legalizing abortion at the federal level. But they haven’t, and the filibuster is probably what’s keeping them from pulling the trigger.

At the state level, it’s unclear whether Dobbs will cause a substantial shift in abortion-restriction schemes in most states. More liberal and centrist states will probably not see much change in their laws. More conservative states, however, will most likely pass more restrictive laws—similar to Mississippi’s restrictions. For most people—those who live in more liberal states and those with enough money to travel to them—abortion will remain legal and available. For those who live in more restrictive states and do not have the means to travel, abortion will most likely become harder or unattainable.

It’s also possible that the Court changes its mind, though it will probably be decades before it happens. There are currently six conservative-leaning justices. (For decades, the Court was split 5–4, but the death of Ruth Bader Ginsburg during Trump’s presidency shifted it to 6–3.) If the liberals can make up ground back to 5–4 (conservative–liberal) or even 5–4 (liberal–conservative), then it’s possible they could overturn Dobbs and reinstate Roe and Casey (or set a new standard for abortion rights—perhaps under the EPC).

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