With Dobbs v. Jackson Women’s Health Organization, the Supreme Court has attempted to repair the fissures in its own legitimacy created a half century ago by Roe v. Wade. Will this attempt work? Or will it only deepen our moral and political divisions?
In my view, both the dissent and the majority opinions represent approaches that are unlikely to heal the divisions precipitated by Roe. The most promising—because it is the most judicious—approach was proposed by Chief Justice John Roberts in his concurring opinion, which would have upheld the Mississippi law at issue without technically overturning Roe. It is unfortunate that he was unable to convince Justice Brett Kavanaugh to join him rather than the majority, despite Kavanaugh’s clear reservations about the majority opinion. We might then have had a controlling opinion that allowed us, slowly and haltingly, to move forward together as one people on the vexing question of abortion. Instead, by returning abortion to the states for each to regulate as it sees fit, Justice Alito’s majority opinion condemns us to more severe balkanization.
Drawing on Justice Robert Jackson’s famous observation, we can say that the Supreme Court is not final because it is right; it is right because it is final. By this standard, Roe v. Wade was not at all right, because it was by no means final. In the late 1960s and early 1970s, abortion was at the margins of our national political debates. It was nearly exclusively the province of academics and a few activists on either side. Roe v. Wade provoked a raging political controversy about abortion where there was none.
But that controversy has proven irresolvable. As many polls show, opinions on abortion have shifted very little over the past few decades. Gallup concluded that in 2022, 35 percent of the population said that “abortion should be legal under any circumstances,” 18 percent said that it “should be legal under most circumstances,” 32 percent said that it should be legal “only in a few circumstances,” and 13 percent said that it should be “illegal in all circumstances.” Three percent of the respondents expressed no position. In 1994, the first year for which Gallup provides data on this question, the responses were extremely similar.
Viewing these polls, we are tempted to claim that Roe made no difference in our national views on abortion. But such a claim would be deeply misleading. Roe functioned like a political virus, whose mutant DNA reconfigured and divided the country, as abortion morphed into a wedge issue. Gallup polls show that in 1995, 51 percent of Republicans identified as pro-life, while 42 percent viewed themselves as pro-choice. By 2022, 70 percent of Republicans were claiming the pro-life label, while only 23 percent described themselves as pro-choice. The opposite trend is evident among Democrats. Fifty-eight percent of them were pro-choice in 1995; 88 percent were pro-choice in 2022. One-third of Democrats still identified as pro-life in 1995; only one in ten identified as such in 2022.
Political divisions in the United States are increasingly correlated with other divisions. One study showed that Democrats and Republicans are now less likely to marry and form families with each other. With the solidification of “red states” and “blue states,” they are also less likely to have to govern together. In a recent article in the Atlantic (“America Is Growing Apart, Possibly for Good”), Ronald Brownstein provocatively argues that the divisions of the Civil War still exert their influence—although this time, the South may have the upper hand.
Roe failed to convince the majority of the country of its approach to abortion and the law. Crucially, however, it also failed to fail. The fact that Americans remain so evenly divided about the question is what distinguishes Roe from other key cases where the court has overruled a prior decision, such as the court’s repudiation of the constitutional impediments it placed in the way of Franklin Roosevelt’s New Deal. By the time the court reversed course on the New Deal, nearly the entire country recognized that addressing the suffering caused by the Great Depression required a new approach.
One could argue that times have changed since the 1930s; we are now helplessly riven by the culture wars. But consider two other watershed Supreme Court cases that involved culture-war issues. In 1997, in Washington v. Glucksberg, the Supreme Court declined to recognize physician-assisted suicide as a constitutional right, leaving the matter to the states to regulate as they saw fit. Nearly twenty years later, in Obergefell v. Hodges, the court recognized that the Constitution protects the right of same-sex couples to marry on the same terms as opposite-sex couples. Although controversial at the time, neither of these decisions has proven to be incendiary in the way that Roe did.
How should the Supreme Court treat a decision like Roe, which not only failed to succeed, but also failed to fail, thereby leaving the country divided in numerous ways? There are three basic options, each of which is taken by the three major opinions in the case. Let’s begin with the dissent (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan), which is arguably the most conservative of the opinions in Dobbs, because it argues that the right decision is to stay the course and uphold Roe. The dissenting justices emphasize the importance of following precedent for the sake of judicial humility and respect for the rule of law. Moreover, they point out that the right to abortion is protected by precedent upon precedent; Planned Parenthood v. Casey reaffirmed—while also reconfiguring—the right to abortion almost twenty years after Roe. Because nothing fundamental has changed since Casey was decided except the membership of the Supreme Court, the dissent argues that overruling Roe is a political decision, not a decision of sound jurisprudence.
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