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Making Sense of Our Post-Roe World
For the first time in this country’s history, the Supreme Court took away a fundamental constitutional right it had previously recognized.
Roe v. Wade and Planned Parenthood v. Casey are dead, taking with them the right to an abortion.
We’re officially living in a post-Roe world.
Knowing this day would come doesn’t make the reality any easier to process. It’s tough. It’s dark. But as trite as this may sound so soon after such a devastating loss of autonomy and humanity at the Supreme Court, the fight is far from over—and I, for one, am going nowhere until it’s finished.
Let’s get some basics out of the way. Friday’s 6–3 decision in Dobbs v. Jackson Women’s Health Organization is catastrophic for millions of people in this country, for the rule of law, and for our democracy. Six unelected justices defied the Constitution, the will of the people, and their own sworn Senate testimony to declare there is no constitutional right to abortion.
As of publishing, nine of the 13 states with “trigger” bans on their books—Alabama, Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Utah, and Wisconsin—have already criminalized abortion within their borders. The other four states will soon follow. By summer’s end, abortion will be illegal in large swaths of this country. And in those states where the right remains, access will be strained in unimaginable ways, meaning no state is an abortion-safe state.
And while Justice Samuel Alito may have promised in his majority opinion that the decision isn’t really a threat to other fundamental privacy rights, like the rights to contraception, sexual privacy, and marriage equality, Justice Clarence Thomas, in his concurring opinion, specifically calls on Conservative advocates to offer up a test case to the Court to challenge each of those rights.
This is the beginning of a new puritanism in this country, ushered in by the Alito Court.
But, like the puritanism of this country’s past, this modern version will require state violence to enforce it. So I suppose it makes sense that the Court overturned Roe just 24 hours after releasing New York State Rifle & Pistol Association v. Bruen, a decision that radically reinterprets the Second Amendment to practically require concealed carry across this country.
Conservatives previewed this coming puritanical violence when they passed a law that bans abortion as soon as six weeks and empowers citizen vigilantes to enforce it. The Supreme Court suggested Texas was just the beginning when it let SB 8 take effect under cover of darkness last September.
And now we know it was.
When I first started covering the abortion rights fight at the Supreme Court, my writing would be deep-dives into both the legal arguments and the political fights. Previous editors would gently or not-so-gently carve up blocks of quoted legalese that I insisted mattered and could be explained to non-lawyers. But honestly, I loved writing them.
I can’t do that with Dobbs v. Jackson Women’s Health Organization. The majority opinion is such an exercise of bad-faith jurisprudence—and the political campaign to bring the case to the Court and presto change-o it to a direct challenge to Roe such a farce—that there’s nothing more for me to engage with on the merits. The majority opinion snidely tosses away the constitutional reliance and interests of millions of people in this country by effectively saying, haha, actually, you are not people at all.
The joint dissent is, predictably, worth the read. Not only do Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor filet Alito’s cherry-picked originalism and the Conservative majority’s naked power grab, they also detail the actual harm that is already unfolding thanks to Alito’s bloodthirst.
“Power, not reason, is the new currency of this Court’s decisionmaking,” the dissenting justices wrote, quoting Justice Thurgood Marshall.
Power, not reason—that’s what counts as the constitutional rule of law in the Alito Court.
The dissent continues:
“Mississippi—and other States too—knew exactly what they were doing in ginning up new legal challenges to Roe and Casey. The 15-week ban at issue here was enacted in 2018. Other States quickly followed: Between 2019 and 2021, eight States banned abortion procedures after six to eight weeks of pregnancy, and three States enacted all-out bans. Mississippi itself decided in 2019 that it had not gone far enough: The year after enacting the law under review, the State passed a 6-week restriction. A state senator who championed both Mississippi laws said the obvious out loud. “[A] lot of people thought,” he explained, that “finally, we have” a conservative Court “and so now would be a good time to start testing the limits of Roe.” In its petition for certiorari, the State had exercised a smidgen of restraint. It had urged the Court merely to roll back Roe and Casey, specifically assuring the Court that “the questions presented in this petition do not require the Court to overturn” those precedents. But as Mississippi grew ever more confident in its prospects, it resolved to go all in. It urged the Court to overrule Roe and Casey. Nothing but everything would be enough.”
Nothing but everything would be enough. And that’s all that needs to be said about the anti-choice movement following this decision. Do not be fooled that Friday marked the end of some fight on the part of the anti-choice movement. On the contrary, a whole new front has just now opened up.
This article was originally published by RewireNewsGroup. It has been republished here with permission.
Jessica Mason Pieklo is a Senior Vice President and Executive Editor. She is also the co-host of the Rewire News Group podcast Boom! Lawyered. She was part of the SCOTUSblog symposium on abortion rights following Whole Woman’s Health v. Hellerstedt and won the Excellence in Online Journalism award in 2018 from the Association of LGBTQ Journalists.