Roe v. Wade has been overturned. What does that mean for America?

On Friday, the U.S. Supreme Court overturned the landmark Roe v. Wade decision in a 6-3 vote. Almost half a century ago, the Roe v. Wade ruling was the basis for establishing a constitutional right to abortion. Last week’s decision in Dobbs v. Jackson Women’s Health Organization demonstrates the increasingly conservative direction of the court and prompts questions about the implications for civil rights, American democracy and political polarization, and health policy.

Several Harvard Kennedy School faculty members share perspectives below.

• Erica Chenoweth: The role of activism in protecting civil rights
• Archon Fung: Dobbs and democratic legitimacy
• Sheila Jasanoff:  Seize back the political discourse on life
• Jane Mansbridge: The struggle shifts
• Zoe Marks: Breaking the silence
• Pippa Norris: Exceptionalism, again? American attitudes towards abortion
• Maya Sen: The implications of a conservative U.S. Supreme Court
• Sarah Wald: How the decision in Dobbs could have an impact on other protected civil rights

The role of activism in protecting civil rights

Erica Chenoweth

In response to the Dobbs decision, some people have expressed skepticism about the power of protest in protecting or securing rights. But this perspective is misguided. First, sustained activism in support of choice and reproductive justice has led numerous states—including Massachusetts—to enshrine abortion access into law. This provides a powerful bulwark against the total removal of abortion access in the United States, regardless of Roe. Second, we need to think not only about what happened because of mass movements in the years preceding Dobbs, but also what was avoided due to movement mobilization and popular participation in democracy. The 2017 Women’s March, for example, was the opening salvo in a sustained period of mass mobilization against Trump’s agenda that drew in millions of Americans. Women, undocumented immigrants, people with disabilities, youth, Indigenous people and Native nations, and Black Americans were civically engaged and organized in unprecedented numbers. Effective organizing and mobilizing ultimately helped to curtail or delay some of most troubling encroachments on rights during the Trump presidency, such as the so-called Muslim Ban and the GOP’s attempt to end the Affordable Care Act. Towns and cities that had large Women’s March participation in 2017 subsequently saw more diverse candidates running for office—and much higher vote shares for those candidates, culminating in the 2018 “Blue Wave” that overtook the House of Representatives and led to the most diverse Congress in U.S. history. Movement work during the Trump era culminated in a powerful pro-democracy coalition during the troubled 2020 election and its aftermath. This coalition was powerful enough to win a bare majority in the Senate, maintain a majority in the House, defeat Trump at the polls, and stave off his attempt to stay in power after losing. Indeed, the Blue Wave was directly responsible for allowing Congress to hold the line on the peaceful transfer of power in 2020, certifying the election on January 6th despite a coup attempt by Trump, which a sizable number of GOP Congresspeople supported. Had Trump succeeded in either winning the election or seizing power, it is likely that we would now have a nationwide abortion ban signed into law and perhaps upheld or affirmed by the Supreme Court. (Indeed, this is one of the primary campaign promises of GOP candidates running for the House and Senate in 2022 and the presidency in 2024.)  
 
That said, this pro-democracy coalition—which included elements of the pro-choice and reproductive justice movement—was not powerful enough to defeat anti-abortion politicians throughout all 50 states; nor was it able to undo Mitch McConnell and Donald Trump’s lasting impacts on the Supreme Court. But even those developments—the rightward swing in judicial appointments and the ascendance of anti-abortion politicians in dozens of states over the past two decades—can be chalked up to effective organizing, mobilization, and strategy by a countervailing movement of anti-abortion activists who have been singularly focused on overturning Roe v. Wade since 1973. If anything, what Dobbs shows is that state-based organizing, sustained activism, and effective strategy can lead to monumental change—despite overwhelming public opposition. The anti-abortion movement was particularly effective in playing the “inside-outside game”—the ability to find the most important leverage points for policy change, and to use public mobilization to pressure and encourage party elites to align with their preferences. Over the past five decades, the anti-abortion movement put the issue squarely on the Republican party platform, captured power within numerous states, lobbied for federal judges and justices who would overturn Roe, and ultimately captured the unaccountable and highly impactful institution of the Supreme Court. (The next step, of course, is to capture the trifecta—the White House and both houses of Congress—to pass legislation that would outlaw abortion nationwide.) This episode shows that activism and electoral mobilization are absolutely crucial in determining the course of events—even if it takes 49 years.  

For those seeking to protect women’s bodily autonomy, protect access to abortion, and expand reproductive justice (among other rights), important lessons emerge from effective mass movements around the world. First, protesting without a broader strategy for affecting formal institutions and the balance of political power is usually ineffective and demoralizing; however, developing clear strategies for organizing communities and mobilizing pressure on key elites often yields powerful dividends.  
 
Second, movements are more successful when they adopt multiple methods of nonviolent resistance beyond symbolic protests alone. There will be many urgent and life-saving needs among women who cannot access necessary reproductive care, suggesting an urgent need to develop and strengthen mutual aid networks, abortion access funds, and safe transit to states that continue to provide these services for the time being. Moreover, noncooperation—refusal to implement laws, boycotts, strikes, work stoppages, and other forms of economic noncooperation—typically builds more immediate pressure and leverage than protest. Some governors, attorneys general, district attorneys, medical personnel, and public health associations have already condemned the ruling and committed to continue providing access to care. These are important and impactful shows of noncooperation and provide an informative map of the current landscape of movement supporters—and movement opponents. 
 
Third, movements that win get enough key pillars on their side to bring about the desired change. Over time, the movement will need to mobilize overwhelming numbers of sympathetic voters to produce more robust pro-choice majorities in Congress and in as many statehouses as possible. This will be a formidable task for several reasons beyond the current dominance of the GOP in prohibition states.  
 
It is important not to underestimate the degree to which restrictions on reproductive health care obstructs equal access to political participation for women. Pregnancy and early childhood parenting significantly reduce voting and other forms of political participation. Women with unintended pregnancies and births are at much greater risk of depression, which is also associated with a significant decline in voting participation and sense of self-efficacy. And women who are unable to safely access abortion may die or become severely injured from medical complications or from intimate partner violence. The potential harm to people who are most adversely affected by these policies—and their reduced ability to participate in civic action—is an important reality that our society will need to address.
 
This is relevant to the fourth capacity of successful movements: they accurately assess the political landscape, think long-term, and build staying power. They methodically and patiently execute steps to gain power and implement their preferred policies—and they find ways to inoculate their victories against counter-movements—even if it takes a generation to see it through. Although the pro-choice movement does not currently have time on its side, it does have numbers. Public opinion polls suggest that the overturning of Roe is deeply unpopular. Majority public support is not sufficient to yield legal change, but it is a powerful starting point for the next chapter in a strategic battle to protect reproductive rights—and other civil rights facing renewed peril. 

Erica Chenoweth is the Frank Stanton Professor of the First Amendment.

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Dobbs and democratic legitimacy

Archon Fung

On Friday, the Supreme Court determined that women do not have a Constitutional right to choose whether to terminate their pregnancies and overturned the 50-year precedent established in Roe v. Wade. I deeply believe that women have a right to choose because it is essential to women’s dignity, equality, and freedom. But tens of millions of other American citizens disagree out of their own earnest and deeply held reasons. Perhaps the fundamental challenge to democratic governance is coming to resolutions that citizens regard as legitimate in the face of such disagreements. In large measure, the crisis of American democracy is that many Americans simply don’t trust our judicial and political institutions to settle such disputes legitimately.

For the last 50 years, anti-abortion partisans have regarded Roe as an illegitimate usurpation of democratic authority. Why should nine unelected and highly unrepresentative judges (the Court that decided Roe in 1973 was composed of eight white men and Justice Thurgood Marshall, who was Black) be able to make such monumental and socially controversial law?

And in the aftermath of Dobbs, pro-choice advocates and other Americans will offer their own potent criticisms of the court’s legitimacy. Of the six justices supporting the judgement in Dobbs, five of them were appointed by presidents who lost the popular vote: Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and John Roberts (Clarence Thomas was appointed by George H.W. Bush, who did win the popular vote). The second order problem of the Supreme Court’s legitimacy—who chooses the justices—is the larger Electoral College problem of minority rule in the United States.

By September 2021, only 40% of Americans said that they approved of the Supreme Court. 

Another problem with the court’s legitimacy is that the justices themselves deeply disagree about what the Constitution requires or even how to make that determination. Justice Alito’s majority opinion devotes many pages to documenting the absence of abortion rights in the 18th and 19th centuries. The dissenting justices instead stress contemporary harms to women and the need to adapt enduring principles to changing technologies and conditions.

Then there is the question of whether the Constitution itself is sufficient to ground all of the rights and freedoms we should have in the 21st century. It was last significantly updated about 50 years ago—well before the arrival of the personal computer and the internet—when the 26th amendment lowered the voting age to 18.

A friend of mine who also happens to be a great political historian observed recently that those who wrote the Constitution almost certainly didn’t intend for it to govern the country’s affairs 250 years hence. They would have anticipated correctly that many things would change over that time. How much should we be subjected by the historical fact that the Bill of Rights contains a clause on the right to bear arms (see Heller and Bruen) but nothing about abortion?

In the post-Dobbs era, many questions about the scope of women’s reproductive choices will be determined in the states. The legitimacy of those settlements depends upon the quality of democracy in the states. Political scientists Jake Grumbach and Chris Warshaw helped me understand how that terrain is shaping up. There are a handful of states in which majority public opinion opposes a woman’s right to choose and that are likely to proscribe abortion (West Virginia, Arkansas, Oklahoma, Mississippi, Utah, North Dakota, Tennessee, Louisiana, and South Dakota). There are a large number of states in which public opinion strongly favors choice and in which the laws will likely protect it. These include Massachusetts, New York, California, and many others.

Then, there are a number of democratically problematic states in which a majority of the public supports legal abortion. But, due to gerrymandering and other powerful deformations of democracy, laws are unlikely to afford women reproductive choice. These include Texas, Wisconsin, Ohio, Georgia, Michigan, and Florida. This distortion of democratic responsiveness is asymmetric: there seem to be no states where a majority of the public opposes abortion but state law is likely to permit it.

Democracy is a miracle because it requires each of us sometimes to subordinate our deeply held commitments to the contrary determinations of legitimate democratic processes. In the wake of Dobbs and other highly controversial rulings (Bruen, but also Roe many years before), the court may be incapable of enhancing its legitimacy in the short and medium term. As abortion debates and fights move to the states, a central challenge will be to make those political processes as democratically legitimate—fair, equal, deliberative, and responsive—as they can be. The greatest threat to democratic legitimacy lies in those states where the majority of the people favor reproductive choice, but gerrymandering and other antidemocratic power grabs enable legislators to deny them that choice.

Archon Fung is the Winthrop Laflin McCormack Professor of Citizenship and Self-Government and faculty director of the Ash Center for Democratic Governance and Innovation.

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Seize back the political discourse on life

Sheila Jasanoff

For any woman who grew up as I did in the decades of expanding women’s rights, the majority opinion in Dobbs v. Jackson Women's Health Organization lands as a monumental act of antidemocratic backsliding. A high court of six men and three women, representing a small slice of this nation’s intellectual, moral, and gender diversity, has handed down a decision that rolls back 50 years of growing control by women over their bodies, selves, and life choices. It ignores advances in science and technology that have reshaped how we think about reproduction and the meaning of life, as well as the degree of control we feel entitled to exercise over aspects of biology that differentiate females from males. Grounding a decision in a perverse historicism—as if one can write into law attitudes toward life crafted centuries before current biological and social understandings—is a form of anti-intellectualism that has no place in democracies committed to protecting the lives and liberty of all their citizens.

That said, we who dissent from Dobbs must not fall into the traps laid by this Supreme Court and the cheering pro-life lobby by framing abortion solely as a biological choice. This is not a moment to be pressing for the right to terminate pregnancies per se, let alone for technological workarounds such as the morning after pill or medicated abortions, despite their practical appeal. We need more urgently to seize back the political discourse on life that has empowered this court to present a massively retrograde decision as if it stands on moral high ground. 

The “life” the Supreme Court and its supporters presume to speak for is a life stripped of connection, purpose, and meaning. Dobbs reduces the cultural complexity of pregnancy, motherhood, and family to the right of each individual conceptus to be born alive. This reductionism flies in the face of women’s claims to equal opportunity, though they bear the greater burden of procreating and, often, of nurturing.

Rights, moreover, are not static principles, like preserved specimens pinned forever to the text of an aging parchment. Rights evolve. They are reframed in keeping with our knowledge, our capabilities, and our aspirations. It is this dynamism, the freedom to reimagine liberty and equality as knowledge advances and technologies change, that we must reclaim from Dobbs’ illiberal framing of what life truly means.

Where then to begin? Let us note, first, that Dobbs cuts against the grain of contemporary gender politics and visions of human progress in the Americas and the West. One after another socially conservative, majority Catholic country has moved in recent years to liberalize abortion laws to give more voice to women: Italy, Ireland, Argentina, Colombia, Mexico, Chile. European countries have long recognized that respect for developing fetal life need not be tied to punitive abortion laws. Germany is a case in point. Under German law, life begins at the moment of conception and the country’s Basic Law decrees that human integrity is inviolable. Nonetheless, Germany acknowledges that legal abortions are necessary to safeguard women’s health and well-being and recently eliminated a Nazi-era ban on providing information about abortion services. In the Netherlands, effective family planning and liberal abortion laws coexist with strikingly low numbers of unwanted pregnancies and abortions.

These powerful currents of liberalism demonstrate a growing unwillingness in progressive societies to let the biology of reproduction dominate women’s autonomy. They show that we can insist on modern rights: to have children we want and can care for, to not have children if that is our choice, and to take back the night from the darkness of Dobbs through a politics that is both pro-choice and, in the fullest sense, pro-life.

Sheila Jasanoff is the Pforzheimer Professor of Science and Technology Studies.

 

The struggle shifts

Jane Mansbridge

After Dobbs v. Jackson Women's Health Organization, the struggle shifts to providing access to a prescription for a self-induced “medication” abortion. It also shifts to the possibility of a federal ban on abortion.

A medication abortion requires taking two drugs, mifepristone and misoprostol, over two days, to self-induce the abortion. (This is not the “morning-after” pill.)  The Food and Drug Administration has approved this prescription for the first ten weeks of pregnancy, but it can be used after that at greater strength and with some risk. Once you have the pills, which are legal in the non-abortion-ban states, the problem is making sure to take the combination as directed. First you take the mifepristone pill, then wait for 24 hours. Then you put four of the misoprostol tablets under your tongue for 30 minutes, timed on the clock. Then you wait for 3 hours and put another two misoprostol tablets under your tongue for 30 minutes. Bleeding should begin in 3 hours, producing major bleeding within the next 12 hours, along with severe cramps and possibly fever and diarrhea. The process is complicated. Currently half the people who receive abortions in the United States are below the poverty line and another quarter are just above that line. Although just over half the abortions in the United States today are medication abortions, for the many with few resources this complex process may be particularly overwhelming. 

For women in abortion-ban states, a far more important problem is getting the pills in the first place. In these states doctors will be acting illegally if they prescribe these pills. For women in these states who can navigate the internet, European doctors can generate the prescriptions and a provider in India can mail the pills to them (e.g., through the website Aid Access). U.S. doctors in non-ban states face legal risks if they prescribe across state lines.

Because of the possibility of international access to prescriptions over the internet, the abortion-ban states may soon make it a criminal act for pregnant women to try to order such a prescription. (Those laws will apply equally to transgender men and any others who become pregnant.) Laptops or cellphones can be confiscated and search histories used as evidence.

The coming months and years will see activism, legal battles, and new strategies arising to help women who need an abortion to learn about medication abortion and find legal providers of that medication for them internationally and perhaps in the United States. Activists will still have to help women find surgical abortions (procedural abortions) across state lines after the appropriate time for a medication abortion has passed, but the most important battles will be fought over medication abortion. The legal field is open. Expect litigation and counter-litigation. In abortion-ban states, expect new laws criminalizing not only abortion providers but also those pregnant women who seek a medication abortion. In non-ban states, expect new laws protecting providers who prescribe across state lines. (This past Friday Massachusetts Governor Baker did just that with an Executive Order.)

If the Republican Party gains control of the two houses of Congress and the Presidency in 2024, expect a federal ban on abortion. In every debate, expect the question, “Do you favor a national total ban on abortion?” The legal door is now open for that ban. 

Once again, the world has shifted under our feet.  

Jane Mansbridge is the Adams Professor of Political Leadership and Democratic Values, emerita.

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Breaking the silence

Zoe Marks

The Supreme Court’s decision last week to let state legislatures control people’s access to abortion care is the latest chapter in a decades-long conversation that most Americans have been reluctant to have.

The majority opinion in Dobbs reverses precedent on the basis of the Constitution. As a historical reference point, it’s useful to remember there is no record of women being discussed at the Constitutional Convention, they couldn’t own property or vote, and their fathers or husbands exercised political, legal, and physical “tyranny” over them (to use Abigail Adams’s framing). Yet, abortion was legal throughout the colonies and widely practiced throughout the Americas. For millions of enslaved women, who were held as property and legally denied bodily autonomy and personhood, sharing knowledge of birth control and abortifacients was a way to claim their sovereignty and resist white capitalist violence. (Poignantly, women on plantations chewed the roots of cotton—the single most influential cash crop in the South—to prevent and end unwanted pregnancy.)

Now, states in the South and Midwest have the fastest growing rate of abortion restrictions (Guttmacher Institute, Planned Parenthood). Deep histories of legal and material inequalities shape people’s experiences of health and wellbeing—and laws that restrict or promote them. For people who are heterosexually intimate, access to contraception has taken on new urgency—over 19 million women live in contraceptive deserts and availability is lowest in many of the same states with newly legal abortion bans. These states, incidentally, also have some of the weakest sexual health and sexuality education in schools. More broadly, the implications of states controlling people’s access to reproductive healthcare will offer another unwelcome lesson in the cruelty of intersectional oppression: poor, rural, and undocumented patients, disproportionately women of color, are most likely to lose access to abortion and least likely to have access to contraception, quality reproductive and maternal healthcare, paid medical or parental leave, and childcare. Moreover, these groups are most likely to be surveilled, criminalized, and punished under rapidly proliferating anti-abortion laws and will have fewer legal resources to protect themselves and their loved ones.

Such impacts will be felt most powerfully at the embodied level, then in intimate relationships, households, and families; workplaces and spiritual communities will reverberate with the effects of forced parenthood, and campaigns and public debate will (potentially) renew focus on which rights, safety nets, and protections should be bolstered and how. Viewing U.S. politics and moral debates through a global lens can help us more clearly see the nature of this divided republic.  The United States is one of only three countries—joining Nicaragua and Poland—to curtail abortion rights since 2000, while 31 have expanded them. American polarization is visible on a global stage, where the United States is now simultaneously one of the most abortion-restrictive and permissive countries in the world, joining just 24 countries where abortion is outlawed in all circumstances and 72 countries where it is available on request.

Breaking the silence in our reluctant abortion and reproductive justice conversations will determine what comes next at the most intimate and highest public levels of our personal and political lives.

Zoe Marks is a lecturer in public policy.

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Exceptionalism, again? American attitudes towards abortion

Pippa Norris

The past half century has seen growing liberalization of access to legal abortions worldwide. Policies vary but global estimates report that abortion to save a woman's life is allowed legally in 98% of countries. Post-industrial societies are usually least restrictive in allowing abortion on request, with different gestation periods.

Why is America reversing track on reproductive rights, contrary to global trends towards greater liberalization? Obviously, it’s a complex story. Many popular narratives focus on specific contingent events and elite actors in the conservative movement responsible for tipping the balance in the court: most obviously, President Obama’s failure to prioritize codifying reproductive rights into law when Democrats had opportunities to do so; Congressional gridlock and Mitch McConnell’s blocking debate about Obama’s nomination of Judge Merrick Garland to the Supreme Court; the death of Justice Ruth Bader Ginsburg; President Trump’s selection of three conservative members of the Supreme Court; dark money; partisan polarization; evangelical zeal fueling conservative culture wars; and inadequate penalties for perjury in a broken judicial nomination process. All these contingencies and structural failures are likely contributors to the eventual defeat of Roe v. Wade, along with many others.

But alternatively “Cultural Backlash” (Norris and Inglehart, 2019 CUP) explained this as part of a broader cultural backlash by the socially conservative minority whose hegemonic status and power was threatened by the rising tide of social liberalism (the “silent revolution”), which started in the 1960s and 1970s. Structural arrangements systematically overrepresent rural areas (and thus Republican social conservatives) in the Senate and Electoral College, while processes of partisan gerrymandering, primary elections, and partisan control of state electoral laws incentivizes candidates in both parties to run for elected office by appealing mainly to their ideological party base more than the median voter. The Dobbs v. Jackson decision is the logical outcome of these constitutional flaws and dysfunctional inducements.

As argued in “Cultural Backlash,” older generations of traditional social conservatives feel threatened by the socially liberal arc of history in modern societies and the gradual transformation of attitudes, particularly among younger generations, exemplified by declining respect for traditional norms concerning marriage and the family, the erosion of religiosity and faith, acceptance of more fluid roles for women and men, gender identities, and forms of sexual expression, and support for the values of racial equality and ethnic diversity. In this regard, modern societies have been experiencing generational shifts in the deep tectonic plates of cultural values and social identities.

The Republican backlash against reproductive rights has clearly been mobilized by the actions of faith-based social movements, the GOP party leadership in Congress and the states, and the decisions of socially conservative Supreme Court justices. It has been greatly facilitated by structural biases in institutions like the Senate and Electoral College which systematically overrepresent the power of the conservative heart of rural America, and by Republican control of state houses in these areas. But it can also be understood as rooted in how socially conservative voters in the electorate respond to profound cultural changes in America. And, newly energized by victory and power, many fear that these radical forces are unlikely to stop at abolishing Roe v. Wade.  

Pippa Norris is the Paul F. McGuire Lecturer in Comparative Politics. This piece has been excerpted from a longer paper.

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The implications of a conservative U.S. Supreme Court

Maya Sen

With the court striking down Roe v. Wade, it has cemented its position as being more conservative than the majority of Americans and more in line, more or less, with the average Republican voter’s position. I think this ruling will draw attention to how conservative the court has become.

And given how polarized everything has become in American politics, I would expect that people who are liberal or Democrat will view this court with skepticism and distrust. As more and more cases come out that liberals and Democrats find objectionable, this will hurt the court’s standing with them.

Over time, this will probably lead to increased calls by the Democratic Party and progressive activists for reforming the court—including increased calls for restricting the court’s jurisdiction, instituting term limits for the justices, or expanding the court’s size.

It’s also important to remember that a majority of Republicans—if not necessarily a majority of Americans—think that Roe v. Wade should be overturned and that the Mississippi law at the heart of the Dobbs case is constitutional. I think this decision will be quite popular among this group. Republican Party leaders have worked for years for this moment in terms of judicial appointments, and this ruling is strong evidence of their hard work paying off. If anything, Republicans’ approval of the court will probably increase.

Maya Sen is a professor of public policy. This contribution is excerpted from a recent Q&A.

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How the decision in Dobbs could have an impact on other protected civil rights

Sarah Wald

The Dobbs decision is heartbreaking for everyone committed to women’s autonomy and equality. The decision also has potentially devastating implications for other rights, many longstanding and currently part of the social, historical, and moral fabric of America.

The original Roe v. Wade decision was based on the court’s finding that access to abortion was a “fundamental” right, stemming from the notion of individual privacy as the foundation of individual liberty. Though there was no right to “privacy” mentioned in the Constitution, the court found that many other sections of the Bill of Rights created a “penumbra” of privacy embedded in the right to “liberty.” This foundational privacy right was the basis for several extremely important court decisions recognizing individual rights, including access to contraception, to the ability to interracially marry, to engage in same-sex intimacy and, ultimately, same-sex marriage.

Although the Dobbs decision notes in passing there is no intention to question those other decisions now, the legal reasoning of the opinion seems to reject the basis for those rights, too. It is also very hard to trust that guarantee from some of the same justices who indicated their respect for Roe as settled law during their confirmation processes.

Sarah Wald is an adjunct lecturer in public policy and the HKS co-chair of the Joint Degree Program in Law and Policy.

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Banner: Abortion-rights activists (R) argue with anti-abortion activists in front of the Supreme Court on June 26, 2022 in Washington, DC. Photo by Nathan Howard/Getty Images.

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