By overturning Roe, court gives power to people

With the release of the decision in Dobbs v. Jackson Women’s Health Organization, politicians and pundits went public with a parade of horribles – from the criminalization of contraceptives to the reversal of Brown v. Board of Education. In reality, the post-roe world will look much like the Roe world for most citizens.

While this is a momentous decision, it is important to note what it does and does not do.

The decision itself was already largely known. It did not dramatically change since the leak of an earlier draft. The conservative majority held firm in declaring that Roe v. Wade was wrongly decided: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

In the end, Chief Justice John Roberts cut a bit of a lonely figure in the mix of the court on the issue. His concurrence did not seriously question the majority view that Roe was not based on a good law. However, he would have stopped short of overturning the decision outright. It is the ultimate call of an incrementalist detached from the underlying constitutional interpretation.

The court now has a solid majority of justices who are more motivated by what they view as “first principles” than pragmatic concerns. From a court that has long used nuanced (and maddeningly vague) opinions to avoid major changes in constitutional doctrine, we now have clarity on this issue. It will return to the citizens of each state to decide.

The court anticipated the response to the opinion by those who “stoke unfounded fear that our decision will imperil ... other rights.” The opinion expressly does not address contraception, samesex marriage or other rights.

That claim has always been absurd but has become a talking point on the left. After the leak of the draft opinion, the New York Times opinion editors warned that some states likely would outlaw interracial marriage if Roe v. Wade is overturned: “Imagine that every state were free to choose whether to allow Black people and white people to marry. Some states would permit such marriages; others probably wouldn’t.”

It takes considerable imagination because it is utter nonsense, though it must come as something of a surprise to Justice Clarence Thomas, given his interracial marriage, or to Justice Amy Coney Barrett, given her own interracial family.

The overwhelming majority of Americans have supported Roe v. Wade and 16 states have guaranteed abortion, including states such as California, Illinois and New York that hold a significant percentage of the population.

Moreover, abortions can be carried out at home, not in a clinic, with the use of “morning-after” pills. It would be difficult for states to prevent access to such pills even if they were inclined to do so, particularly if such access is supported by the federal government.

Yet, 26 states asked the court to overrule Roe and its successor, Casey. With Dobbs, we will now have a new political debate over access and any limitations for abortion. Most citizens are in the middle on this debate.

While a strong majority support Roe v. Wade, they also support limitations on abortion.

President Joe Biden responded to the opinion by calling, again, for a federalization of the Roe standard by Congress.

One thing Biden said was clearly true. Abortion will now be “on the ballot.” The justices were indeed motivated by the need for the public to make these decisions and wrote that “Roe abruptly ended that political process.”

The issue will loom large in the upcoming election now that states will decide their own laws, ranging from prohibitions to restrictions to absolute guarantees. And the outcome will turn on the votes of millions of citizens rather than nine justices.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @Jonathanturley.