Center for American Progress

In Dobbs, By Overturning Roe and Denying the Right to an Abortion, the Supreme Court Has Attacked Freedom
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In Dobbs, By Overturning Roe and Denying the Right to an Abortion, the Supreme Court Has Attacked Freedom

The right to abortion has been denied—but the fight for basic freedom and dignity continues.

People protest in response to Dobbs.
People protest in response to Dobbs, June 2022. (Getty/ Brandon Bell)

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent. “

Justices Breyer, Sotomayor, and Kagan, dissenting.

Today’s decision to overturn Roe v. Wade is a stain on our country’s history and an affront to basic values of freedom and dignity. The Supreme Court has denied the constitutional right to abortion and threatens the ability of all people to make private, personal decisions that shape their futures.

In a 6-3 decision, a radical majority on the Supreme Court overturned nearly 50 years of precedent. The power to determine whether abortion will be legal now returns to the states, where more than half appear poised to enact near-total bans. Many states have already acted to do so, often not allowing for care in cases of rape, incest, or the health of the patient. Meanwhile, politicians in other states, such as Virginia, are calling for new restrictions in light of the court’s decision in Dobbs v. Jackson Women’s Health Organization.

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The Dobbs decision forecloses the opportunities that the right to abortion care has brought to millions since it was recognized in 1973. The right for women to make the most fundamental decisions about their lives, their families, and their futures is critical. Under Roe, women’s educational attainment and labor force participation has grown, and political representation has increased dramatically as well. When Roe was decided, not one woman was serving as a U.S. senator. Today, there are 24. The right to decide whether and when to have a family has been a critical part of these—and many more—advancements.

Women are not alone in being harmed by today’s decision; its harms will be far-reaching and fall especially on the shoulders of the most marginalized in our society. But it is equally clear that, throughout history, women have been expected to prioritize motherhood over all other pursuits and are particularly valued based on their willingness to do so. Those who have chosen different paths—or even simply delayed motherhood—are too often viewed with judgment and suspicion. Extremist, hateful, insecure individuals—and the institutions that many now command—have long sought to control and diminish these women. Today’s decision is squarely aimed at continuing such harms.

Abortion care is still needed and is a critical part of health care

Abortion is one of the oldest medical procedures, and the need for it does not disappear simply because politicians pass laws to ban it. While more than half of states are poised to eliminate abortion care within their borders, others have made significant strides to improving access for both those in their states and for those across the country who may travel to seek care.

Policymakers must act quickly to advance abortion access further. Such efforts must include ensuring broad access to early medication abortion through the mail, as the FDA has approved it to be prescribed. And officials must put in place safeguards to ensure that those who provide care or assistance to those seeking abortion or who cross state lines to receive care are not prosecuted, as some states may seek to do. Furthermore, while narrow exceptions–such as to protect the life of a patient–never make a ban acceptable, policymakers must ensure patients and providers know how to provide and get care under any circumstances allowed without delay. Finally, the safety and privacy of individuals is paramount in this moment; whatever can be done to protect clinics, providers, and patients must be put into place.

State bans on abortion will accelerate and cause confusion

As stated, more than half of states are poised to ban abortion. In the past several months, states such as Texas have enacted bans on abortion that go into effect before most know they’re pregnant, enforced through complex schemes that encourage neighbors to spy and sue one another when an abortion is suspected. Oklahoma has even enacted a total ban on abortion at any point in pregnancy, with only narrow exceptions. But many more states have trigger bans in place that were designed to take effect if Roe was overturned—and that moment has come. In addition, other states have bans on abortion that were passed well before Roe was decided that may now be revived. It is unclear exactly how these laws will be put into effect in the weeks ahead.

It will be critical in the coming days for public health and other policy officials, in partnership with community leaders, to ensure people are aware of their rights and where they can go to safely get care.

Other rights, rooted in privacy, have never been more threatened

Roe’s holding was built on the rights identified in earlier cases, such as Griswold v. Connecticut, which first established a right to contraception. And the privacy rights enshrined in Roe bolstered later decisions that protected the right to same-sex relationships and marriage, protected by Lawrence v. Texas and Obergefell v. Hodges.

Conservatives have often denied their willingness to upend such protections, claiming their opposition stopped at Roe. In recent months, however, politicians have openly discussed support for banning contraceptives and laws that would threaten the ability for patients to undergo invitro fertilization (IVF). And, in addition to the passage of horrific laws designed to shame and stigmatize the LGBTQ community, MAGA extremists continue to show open hostility to same-sex marriage.

Now, it is clear now that this court may be willing to give legitimacy to these efforts—acting not only to deny the right to an abortion but also keep people from using birth control and marrying the person they love. This is not speculation. This comes from the court itself. Today, in a concurrence, Justice Clarence Thomas wrote:

[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. … [W]e have a duty to ‘correct the error’ established in those precedents.

And he isn’t alone on the court on this extremist view. Justice Alito himself recently complained, “You can’t say that marriage is a union between one man and one woman … Now it’s considered bigotry.”

We will not give up

Justice Samuel Alito’s opinion will rank among the Court’s most infamous decisions, alongside Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States. All represent repugnant denials of freedom, and the appropriateness of Dobbs historical placement with these cases puts a stark light on the reality that women of color, as well as those from other marginalized communities, are the people most in need of abortion care—and the people most likely to be denied the ability to make their own decisions about their families and futures.

But that does not mean those who support equality, dignity, and individual freedoms are defeated. After Roe was decided, anti-abortion factions did not stop trying to dismantle the right to an abortion through the courts as well as through state and federal governments. As dangerous as today’s decision is—the fight isn’t over. We will persist nonetheless and ensure every person has the right to determine their own futures.

The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.

Author

Maggie Jo Buchanan

Senior Director, Women's Initiative

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