It’s been a month.
Almost 30 days since the Supreme Court dropped its decision in Dobbs v. Jackson Women’s Health Organization and millions of women and other people capable of becoming pregnant were instantaneously relegated to second-class citizens. One minute we were people, and the next minute we weren’t. Six unelected justices told half of the U.S. population that we don’t control our uteruses anymore. The state does.
But to hear conservatives tell it, the Court’s decision barely did anything at all. It was merely a trifle. Sure, the Court reversed Roe v. Wade, but what’s the big deal? It’s not like the Court criminalized abortion. Calm down! That’s what they keep telling us.
“Dobbs didn’t criminalize abortion!” As if that’s relevant in a world where 26 states will likely have banned abortion by this time next year.
According to conservatives, the justices simply returned to the states a controversial issue that the Court should never have waded into in the first place. And in doing so, it ushered in a return to democratic principles, which would allow people to decide whether abortion should be legal through their duly elected representatives.
This is, of course, nonsense.
Anyone who has been paying attention to politics over the last decade, following along as the Supreme Court rubber-stamped gerrymandered maps and voter ID laws intended to combat nonexistent voter suppression, knows this is nonsense. The people who will be impacted by the reversal of Roe are not being permitted to elect their own representatives. The Supreme Court won’t let them. (And to thank for that, we have Chief Justice John Roberts’ hopium-filled majority opinion in Shelby County v. Holder in which he essentially declared that racism was dead before shivving the Voting Rights Act in the kidney.)
But this is the sort of nonsense that conservatives are leaning into. They are forced to obfuscate the facts and lie to the public about what the Dobbs decision does and what it permits anti-choice state lawmakers to do, because everything they’re doing is unpopular. And those people who cheered the reversal of Roe may soon realize that reversing Roe was a terrible idea because, in truth, abortion is necessary health care, even if you believe that only “promiscuous sluts” get abortions.
The decision itself is cruel in its disregard for women and pregnant people. In an opinion penned by Justice Samuel Alito, the majority flat-out ignores that for nearly 50 years, millions of people have relied on the constitutional right to abortion in the most personal way. They organized their lives and relationships with the knowledge they had a legal right to terminate a nonviable pregnancy. They chose careers, turned down marriage proposals, snuck a quick shag in a car—all because the constitutional right to abortion existed. But none of these concrete facts mattered.
“Too intangible,” Alito wrote.
“Generalized assertions about the national psyche.”
He might as well have just written, “Bitches be crazy.”
The fallout has been equally cruel. The decision is only one month old, and the consequences have already been devastating.
This isn’t the world the “pro-life” community signed up for. At least not the community’s foot shoulders. It’s obvious from the frantic messaging about how “pro-life laws” don’t hinder pregnancy care. But they do. They already have.
When Students for Life members were protesting abortion at college campuses, did they envision that their nonviable ectopic pregnancy would be quickly treated by terminating that pregnancy? Or did they expect to wait until their fallopian tubes rupture before doctors take action?
When they were harassing patients outside abortion clinics, did they imagine that their ten-year-old daughter would be able to obtain abortion care to terminate a pregnancy conceived via rape? Or would they have to cross state lines and risk national media attention? Did they think their right to travel would be hindered?
Because that’s what is happening.
The media is replete with reports of doctors waiting until pregnant people are on the brink of death before treating them. Hospital administrators and lawyers are making decisions about the medical care doctors can provide their patients. People are being denied prescription drugs they’ve taken for years because of concerns the drug is an “abortifacient.”
A ten-year-old Ohio girl traveled to Indiana to get an abortion after she was sexually assaulted. Later, Ohio Attorney General Dave Yost denied the story as a fabrication before claiming to rejoice in the arrest of a child predator while Fox News plastered the photograph of the doctor who provided the abortion all over TV, just as they did with Dr. George Tiller, an abortion provider, in months before he was murdered.
Sarah Blahovec, who has Crohn’s disease, was told that her prescription for methotrexate could not be filled. Millions of people take it for everything from psoriasis to cancer, but since an off-label use of methotrexate includes ending ectopic pregnancies, people who use it for non-reproductive health-care reasons are being denied the medication.
In Louisiana, a pharmacist refused to fill a prescription for Cytotec. A doctor had prescribed it to their patient to make the insertion for an intrauterine device less painful.
The Idaho Republican Party rejected an amendment to the party’s platform that supports criminalization of abortion in all cases that would have permitted an abortion to save a person’s life. Doctors shouldn’t give priority to the pregnant person over the pregnancy—that’s what one of the Republican candidates running for state senate said about the law, which he enthusiastically supports.
And national Republicans just voted against a bill that would have enshrined the right to travel. Are you prepared for a Fugitive Abortion Patient Act akin to the Fugitive Slave Act? Because states are considering it.
This is what reversing Roe has wrought.
None of these real-life harms and consequences that are already flowing in the month since the Court issued its decision were worthy of consideration by the Alito Court majority. (It didn’t much matter to Roberts either, who was willing to uphold the 15-week ban while pretending that somehow, doing so would not be an outright reversal of Roe. It would be.)
But those consequences mattered to the liberals on the bench. Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor knew that reversing Roe was the culmination of a decades-long campaign to appoint justices to the Court who would—despite their fervid protestations during their confirmation hearings that Roe was precedent—reverse the 1973 decision, and they shamed the majority for it in their joint dissent.
“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” the dissenting justices underlined. “The majority thereby substitutes a rule by judges for the rule of law.”
The liberal justices also made it clear in their dissent that they understood what the majority had done: reversed nearly 50 years of precedent on the thinnest of grounds, without considering how many people had relied on the constitutional right to an abortion, and consigned millions of people to second-class citizenship status.
The justices wrote:
“After today, young women will come of age with fewer rights than their mothers and grandmothers had. The majority accomplishes that result without so much as considering how women have relied on the right to choose or what it means to take that right away. The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.”
Dobbs v. Jackson Women’s Health Organization is a lawless decision that ignores decades of precedent by dismissing the very factors that would have required this Court to uphold Roe. The principles of stare decisis were absent from this case. The fix was in as soon as Mississippi attorneys decided in the middle of its appeal to the Supreme Court that it would change what they were asking the Court to do. Originally, Mississippi wanted to know if its 15-week ban was constitutional under current law. At the time, current law was Roe v. Wade and Planned Parenthood v. Casey, both of which say that people have a constitutional right to terminate a nonviable pregnancy. No pregnancy is viable at 15 weeks. No one even argued it was.
But after Mississippi had submitted its petition for writ of certiorari—the document that lays out what the asking party wants the Supreme Court to do—Ruth Bader Ginsburg died, followed quickly by the nomination, confirmation, and appointment of Amy Coney Barrett in the middle of an election season.
By the time Mississippi’s merits brief—the document that fleshes out the arguments set forth in their petition for writ of certiorari—was due, the state changed its ask. No longer were they asking for a ruling under current law. They asked the Court to change the law.
And the Court happily obliged. The Supreme Court is not supposed to overturn cases just because the justices don’t like them. The Court shouldn’t have even taken the case in the first place. There was no circuit split. There was no confusion about what the law was. The Federalist Society-captured justices just didn’t like the law—and so they changed it. And the way they did it was, quite simply, mean. The anger dripping from Alito’s opinion is distressing. The majority just doesn’t care. About women. About pregnant people. About the Black maternal mortality rate jumping by more than a third. About any of it.
The conservative mantra that “Dobbs didn’t criminalize abortion” missed the point. The Alito Court knew that almost two dozen states were champing at the bit to enact abortion bans; they read the amicus briefs. The Alito Court also knew exactly what the impact would be. Dobbs was the final cog in a state-mandated baby-making machine.
And that baby-making machine would not be nearly as effective without the sustained campaign of conservative gaslighting meant to prop up this lawless decision and convince the myriad people who were manipulated into “marching for life” that their reproductive health-care emergencies won’t be targeted.
In congressional hearings last week, Catherine Glenn Foster, the president and CEO of Americans United for Life and former lawyer at Alliance Defending Freedom, insisted that the abortion that terminated the ten-year-old’s pregnancy wasn’t really an abortion. It was something else. A not abortion.
It couldn’t possibly have been an abortion because if it is, then people like Foster would have to admit that abortion is health care and it’s a necessary good. Even if both sides of the issue are going to argue around the edges of when and what kind of abortion should be allowed, surely the foot soldiers of patriarchy will admit that forcing children to have babies is bad policy. They may even have to admit that they miscalculated this country’s stomach for mass death and incarceration.
Then again, maybe they haven’t. Maybe we are monsters. Maybe doctors will continue to let people die rather than risk a lawsuit. Maybe the doctors who don’t will find themselves in jail, unable to care for their own families and their other patients.
I don’t know what the future holds. But I do know one thing, as my colleague Jessica Mason Pieklo has said: The only way out is through.