States of the Union: Maintaining Momentum After Dobbs – Clarke Forsythe

This week marks 30 years since the Supreme Court’s decision in Planned Parenthood v. Casey, which sought to entrench Roe v. Wade. Though Casey tragically postponed the day of reckoning for three decades, the Supreme Court has, at last, dealt with Roe v. Wade’s self-inflicted wound.

The cancer was metastasizing. Public attacks meant to intimidate justices have morphed into personalized threats. The court needed to be extricated from its self-appointed role as America’s abortion control board. Dobbs v. Jackson Women’s Health Organization sent the abortion issue back to the states and did so with clear language. More than once, the court insisted both Roe and Casey were overruled. Further, the court dismissed any other constitutional clause as grounds for abortion rights in future cases.

Justice Is Served

A legal right to elective abortion, the Dobbs decision demonstrated, had never been recognized in Anglo-American legal history before the 1960s. And, the court noted, the Casey decision didn’t reaffirm Roe on the merits, didn’t provide a new constitutional rationale, and failed to settle the issue of abortion. Again, the Supreme Court is no longer to be the national abortion control board.

The Supreme Court is to be the national abortion control board no longer.

But the 6-3 majority was not without dissent. Chief Justice John Roberts added his vote only to uphold Mississippi’s 15-week limit. Justices Thomas, Gorsuch, Kavanaugh, Barrett, and Alito directly addressed Roberts’s attempt at compromise. Alito quoted Roberts back to himself, echoing Roberts’s words in Citizens United v. FEC (2010): “We cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”

Alito concluded his response to Roberts’s, “It is far better—for this Court and the country—to face up to the real issue without further delay.” Five justices joined that statement. For many, Dobbs represented a once-in-a-lifetime opportunity that simply couldn’t be kicked down the road any further. It was now or never.

New Era of Abortion Politics

In the wake of the decision, 11 or 12 states have moved ahead to enforce abortion-restricting laws—either beginning to enforce them immediately or announcing enforcement within 30 days. Abortion is now a state issue for the first time in 50 years. It is imperative, then, for governors and state legislators to get to work. Perhaps the most urgent battlefront lies within America’s so-called purple states (neither Republican nor Democrat). It would seem a majority will support a prohibition after 12 weeks, but enforcing those laws will be critical.

We’re entering a new era of abortion legislation. The move from Capitol Hill to state capitols makes abortion a matter of public opinion and of crafting legislative majorities with real electoral responsibility to pass limits. Careful discernment will be necessary to navigate the road ahead. Think of Roe as a massive boulder in the road. What does the road look like after being crushed by a boulder for 50 years?

Think of Roe as a massive boulder in the road. What does the road look like after being crushed by a boulder for 50 years?

A one-size-fits-all approach won’t do; we’re talking about different states with very different populations and policies. Virginia Governor Glenn Youngkin, for example, has posed a 15-week restriction bill that represents a realistic account of a state legislature controlled by Democrats. Before Roe, we knew by experience that law enforcement wasn’t possible without strong public support. Pro-life leaders should focus their energies on engendering public support in the months and years ahead.

Here’s where states should begin their focus in a post-Dobbs landscape:

Effectively enforce what’s on the books.
Pass the earliest gestational limit possible.
Fight the scourge of chemical abortion.
Enforce detailed abortion data laws.
Publish a Women’s Wellness Index which compiles health, educational, and economic data to show that women flourish in states with pro-life laws compared to states with pro-abortion laws.

Pro-Life Movement Ready

Pro-life legislators aren’t starting from scratch. They’ve had considerable experience in addressing the abortion issue, both producing Dobbs and preparing states for Dobbs. Besides, pro-life advocates have long been the strongest advocates for women and families dealing with unplanned pregnancies they’re ill-equipped to handle. There are more than 4,000 crisis pregnancy centers and child welfare agencies in the U.S. Untold billions of dollars have been spent on caring for vulnerable mothers and children. This trend should only increase.

Clearly, there’s much work ahead. But the work has been lightened by the removal of the Supreme Court’s (and federal courts’) declaration of abortion as a “fundamental right.” States have been handed a great opportunity to save lives and help women balance work and family in America—the desire of millions who celebrate the demise of unfettered abortion access.

In the coming months, will the states continue the momentum of justice catalyzed by Dobbs?

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