The decision had been a likelihood for years and an open secret since a Supreme Court leak in May. It is no less cruel a disaster for that. Six conservative justices, against three dissenting liberals, have ended the national right to abortion in the US. Dobbs vs Jackson Women’s Health Organization will replace Roe vs Wade, the 1973 ruling that it overturned, as the most contentious precedent in American law. This is a dreadful day firstly for women, but also for all those who believed in an enlightened, liberal America.
The human cost will be immediate. Lots of states had anti-abortion bills ready for enactment before the ruling. As these restrict the procedure, less safe alternatives will proliferate. Abortions will not be stopped, only safe ones. Patients and providers will risk criminalisation. Women with the means to do so will face the cost and disruption of travelling out of state for something that was theirs by right for half a century. Some legislatures will try to restrict even that recourse. A woman in, say, Arkansas, could soon be encircled by states about as restrictive as her own.
It will take time, other court rulings and perhaps legislation to shape the precise implications of Dobbs. But this is plainly the largest setback for the legal standing of American women since the liberal turn that most of the western world took in the 1960s. A nation that had a relatively enlightened abortion policy will soon stand out as draconian among its rich peers.
It is the worst, and most tangible legacy of Donald Trump, who added three judges to the court in his four-year presidency. There is a real danger that “his” supermajority on the bench will now go for gay legal rights, affirmative action, contraception and other long-held targets. This week, the court struck down a century-old gun control law in New York state.
The dissenting three justices expressed “sorrow” at Friday’s ruling. There will be much of that in the US, and fear. The challenge is to avoid despair. Surveys show that about two-thirds of Americans opposed the overturning of Roe. This means that liberal campaigners are going with the grain of public sentiment as they look for other ways of shoring up access to abortion.
Yet each of these is either difficult to achieve, or likely to provoke an escalation from the right. National legislation, which is how many democracies deal with the subject of abortion, would run up against the filibuster in the US Senate. Scrapping that 60-vote threshold, as some liberals urge President Joe Biden to do, would incite Republicans into passing all manner of provocative laws on a bare majority when they next control Capitol Hill. The expansion and “stuffing” of the Supreme Court to fashion a liberal majority would be no less incendiary.
One need not be a pessimist to worry about the coming years in the US. An institutional meltdown is distressingly plausible. The counter-majoritarian features of the constitution — Wyoming’s 600,000 people weigh as much in the Senate as California’s 40mn — have irked liberals for a while. Dobbs might lead to their wholesale loss of trust in the rules of the game.
And yet liberals can hardly sit on their hands. State-by-state campaigns will remind lawmakers that, while the anti-abortion position is ruthlessly well-organised, it is not always popular. The Democrats will confront Republicans with the issue in the November midterm elections. The fall of Roe was a multigenerational project on the right, entailing ground campaigns, Federalist Society law school chapters and the careful vetting of judicial candidates. Liberals are capable of performing the same organisational feat. The tragedy is that they now have to.