As the US Supreme Court delivered its decision in Dobbs v. Jackson – which overturned Roe v. Wade and ended the constitutional right to abortion – the deeply personal issue sparked passionate discussion on its ramifications.
The ruling now empowers states to decide individual abortion regulations and laws. More than half of states are committed to banning abortion or enacting legislation to prohibit abortion access.
To examine this shift, the director of AU’s Antiracist Research and Policy Center Sara Clarke Kaplan, dean of undergraduate studies Jessica Waters, and CAS professor Tracy Weitz took questions from media organizations about the “new world” following this landmark ruling. The following Q&A has been edited for length and clarity.
Q: Is there executive actions President Joe Biden can take now to increase abortion access?
Jessica Waters: The most important executive action could be signing into law any legislation passed by Congress. That is looking unlikely but that could be the principal thing the president could do right now. What is an interesting question is the authority of the FDA around mifepristone, which is the drug that induces a non-surgical abortion. Attorney General Merrick Garland came out and said the FDA is going to protect access to mifepristone but that could be limited in the states. It is unlikely a state would be able to ban mifepristone, but certainly could put into place restrictions on subscribing it or limiting access in a state.
Q: Though the main opinion was attributed to Justice Samuel Alito, in which he wrote that the Dobbs opinion should not be construed to mean that the Court will overrule other precedents, Justice Clarence Thomas’ concurrence explicitly did say that “in future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence and Obergefell…”
In your opinions, will other rights be affected by the Dobbs ruling?
JW: Justice Thomas took the most extreme view of the nine justices, but I do think that there is reason to be concerned, and the dissenting justices said the same. If the court is so willing to undo 50 years of precedent under the same legal underpinnings of these prior cases, they cannot be divorced. I do want to make clear that Casey would have to come before the court for those rights to eradicated in the same way, so this is not immediate, but we certainly see a willingness in state legislatures and in states to bring these types of test cases forward – that's how Dobbs got to the court in the first place. I think we do need to be concerned.
Tracy Weitz: As a social movement scholar, it is critical to remember that it is unlikely that people imagined the overturning of Roe 50 years ago. It took an incremental, very structured pathway to get to a place where it seemed reasonable to overturn Roe. It is unlikely that the first case that comes to the court will be to overturn marriage equality – which is probably the issue that has the greatest public support. But we’re already seeing states going after what we consider the more controversial issues. What about trans children in sports? What about access to gender affirming care in public institutions? I could see a pathway to the overturning of these cases through a series of incremental state actions, that are giving increasing legitimacy by the court over time, in the same way abortion got chipped away at for so long. If we are looking for a massive transformation in those legal rights today, I think we are missing what is the beginning of the momentum to overturn those, which is happening on a state level and those expansion of incrementalistic restrictions that create a cultural understanding that these rights aren’t permanent.
Q: President Biden and congressional democrats have warned about the consequences of losing control of the house and senate in upcoming midterm elections. What is the likelihood of a nationwide abortion ban? And will Roe v. Wade be a major motivating factor for voters?
TW: It is the goal of the anti-abortion movement to move in the direction of a nationwide ban. The midterm election could change the composition of the house and senate but unless there is a change in the presidency as well, the nationwide ban is unlikely to happen. But it certainly could happen in the 2024 elections. There are enough people who have called with a nationwide ban to see it as a very real risk in the future.
Sara Clarke Kaplan: There is this sort of fantasy of the apathetic, young voter who won’t turn out for midterms. One of the things we’ve seen in recent years is what affects the turnout of young voters is actually how much they feel represented by the progressive bent of the democratic party. And one of the things we’ll have to think about is if Roe v. Wade is going to be a major motivating factor for those particular voters, then we’re going to have to first see, on the level of political parties, a progressive, actionable stance on what the Democratic Party’s response plans to be for maintaining access to abortion for all people.