In 2003, when the Supreme Court held, in Lawrence v. Texas, that criminalizing gay sex was unconstitutional, it insisted that the decision had nothing to do with marriage equality. In a scathing dissent, Justice Antonin Scalia wrote, “Do not believe it.” Then, in 2013, when the Court struck down the federal Defense of Marriage Act’s definition of marriage as being between a man and a woman, emphasizing the tradition of letting the states define marriage, Scalia issued another warning, saying that “no one should be fooled” into thinking that the Court would leave states free to exclude gay couples from that definition. He was finally proved right two years later, when the reasoning on dignity and equality developed in those earlier rulings led to the Court’s holding that the Constitution requires all states to recognize same-sex marriage.
Illustration by João Fazenda
Just as rights can unfold and expand, however, they can also retract and constrict in breathtaking ways, pursuing a particular strain of logic one case at a time. In the forthcoming decision in Dobbs v. Jackson Women’s Health Organization, the Court is widely expected to overturn or severely undermine its abortion-rights cases, Roe v. Wade and Planned Parenthood v. Casey. In fact, following the comments of the six conservative Justices at the oral arguments in December, the strength of this expectation has spurred state legislative efforts to proceed as if Roe were already gone. A handful of states have passed laws, like the Mississippi law at issue in Dobbs, that ban abortion after fifteen weeks of pregnancy, in violation of precedents establishing that abortion cannot be banned before “viability,” at around twenty-four weeks. (On Thursday, Florida became the most recent.) Some of the laws have been blocked by the courts, but, if Mississippi prevails, the states expect to be free to enforce these bans.
Among the more restrictive bills currently under consideration across the country, more than a dozen emulate the Texas “heartbeat” law, which bans abortion after six weeks of pregnancy and allows only private citizens, not state officials, to enforce the ban. That provision insulates the law from being challenged as unconstitutional in federal court. The Supreme Court repeatedly declined to block the Texas ban, but did leave open a possible avenue to challenge it. In March, the Texas Supreme Court closed that avenue.
Idaho became the first state to enact a Texas-inspired law. Idaho’s law bans abortion after about six weeks, and allows family members (including a rapist’s relatives) of the “preborn child” to sue a provider who performs an abortion. The law was passed last month, but Idaho’s Supreme Court has temporarily blocked it from taking effect. Missouri has introduced a bill that allows private citizens to sue an out-of-state abortion provider, or even someone who helps transport a person across state lines for an abortion. Wyoming has passed a law that bans most abortions, which will be triggered if the Supreme Court overturns Roe. The boldest effort thus far, though, has been in Oklahoma, a destination for Texans seeking abortions. Two weeks ago, Oklahoma’s legislature made it a felony punishable by ten years in prison to perform an abortion except to save a woman’s life in a medical emergency. The governor signed the bill last Tuesday; the law is set to go into effect in August.
Overturning Roe would be the culmination of a half-century-long legal campaign singularly focussed on that outcome. And there are signs that, far from being an end in itself, it would launch even more ambitious agendas. In the Dobbs litigation, Mississippi denied that doing away with Roe would cast doubt on other precedents, set between 1965 and 2015, on which Roe rested or which relied on Roe. This series of decisions held that states cannot ban contraceptives, criminalize gay sex, or refuse to recognize same-sex marriage. The state told the Court that those cases are not like Dobbs, because “none of them involve the purposeful termination of a human life.” But all of them involve the question of whether states should be able to make laws that affect some of the most intimate aspects of people’s lives. In recent weeks, in anticipation of the Dobbs decision, various Republican senators have questioned Griswold v. Connecticut, which struck down a state ban on contraceptives; Obergefell v. Hodges, which required states to recognize same-sex marriage; and even Loving v. Virginia, which invalidated a state anti-miscegenation law. Overturning Roe would almost certainly fuel the broader fight to get fundamental moral issues out of the realm of federal constitutional rights and under the control of the states.
A Supreme Court decision overturning Roe would seek to justify itself on the ground that it allows states to resolve the issue of abortion for themselves, through democratic processes, rather than by having a resolution imposed on them. At that point, it will be tempting to echo Justice Scalia’s “Do not believe it” warning. Although the legal arguments against Roe have focussed on returning the issue to the states, for five decades the core moral belief against the ruling has been that abortion is the termination of a human life. Last week, a twenty-six-year-old Texas woman was arrested on murder charges, for “intentionally and knowingly causing the death of an individual by self-induced abortion.” The prosecutor dismissed the case, saying that the Texas law did not apply to it. But the incident suggested a possible post-Dobbs future, in which states pursue criminal charges against people who have abortions as well as against those who provide them.
It may also be only a matter of time, if Mississippi prevails, before pro-life legal efforts turn toward getting the Supreme Court to recognize the constitutional rights of the fetus. These efforts would focus on the same part of the Constitution that was previously held to provide the right to abortion, the Fourteenth Amendment, which prohibits states from depriving “any person of life, liberty, or property without due process of law.” Fetuses are currently not considered to be persons. But Mississippi’s brief repeatedly notes the human attributes of the fetus, in utero, and it may be a precursor to future constitutional arguments to the effect that fetal personhood prohibits abortion.
In the face of such a push, liberals may one day find themselves advocating for leaving the matter to the states, and perhaps even seeking novel methods—like the one Texas concocted—to circumvent federal-court review of state laws protecting abortion access. Whether or not it would take another fifty years or more for a fetal right to unfold, the pro-life legal movement has demonstrated its ability to fight the long fight. ♦
An earlier version of this article misstated the day that Florida passed a fifteen-week abortion ban.