The political battle over cultural or moral issues—like, say, same-sex marriage—typically follows a familiar path. When the vast majority of Americans opposed gay marriage, the law reflected that, as it did in the 1990s, when support for legalizing such marriages hovered around 30 percent. As public support began to increase, the law changed in select jurisdictions. By the time the first legal same-sex weddings were taking place in 2004, in Massachusetts, public support had increased to 42 percent. Then, once the majority of Americans supported gay marriage, the dam broke. California, New York, Maryland, and other states passed same-sex marriage laws. Sometimes a court decision like Obergefell v. Hodges (2015)—which required states to issue marriage licenses to same-sex couples and recognize same-sex marriages performed in other jurisdictions—clears that final hurdle.
We’re now seeing similar trends with legalizing marijuana, abolishing the death penalty, and implementing stronger gun control measures, as a patchwork of laws are being passed to reflect growing support among the general public.
Generally, once we cross the Rubicon of new laws, there is no going back. The opposing side accepts defeat and moves on. It works that way for almost every cultural or moral issue—except abortion.
The battle over the legalization of abortion has been so fierce and prolonged that it is difficult to imagine a more contentious issue. Last year, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization,which concerns a Mississippi law that bans abortions if “the probable gestational age of the unborn human” is determined to be more than 15 weeks, with narrow exceptions in the case of medical emergencies or a severe fetal abnormality. Experts expect the Court’s six-member conservative majority to, at the very least, uphold the law, which would contradict the holding of Roe v. Wade (1973), the decision that established a constitutional right to abortion and prohibited state bans on abortions before fetal viability, or around 24 weeks. Many believe the Court will go even further and overturn Roeentirely, likely triggering 26 states to immediately outlaw abortion and turn back nearly 50 years of progress.
What is it that makes this social issue so immune to the natural laws of progress?
One reason abortion has been a contentious issue for so long is that public opinion in general has remained intensely polarized, largely along party lines. In contrast to the clear consensus in Canada (77 percent), France (86 percent), or Sweden (87 percent), 59 percent of Americans say abortion should be legal in all or most cases, while 39 percent believe it should be illegal in all or most cases, which is strikingly similar to polling from 1975.
While the fact that a clear majority of Americans support legalization might be enough to calm the storm on an issue like marijuana, the struggle over abortion rights is exacerbated beyond poll numbers because members of both sides care so deeply, with people seeing it as literally a matter of life and death. Those who want to outlaw abortion view it as murder and an unequivocally immoral act, while many pro-choice advocates see restrictions as a sexist invasion of a woman’s privacy and bodily autonomy. The combination of a divided public and activists waging a fiercely moral battle makes abortion unique from issues that are less divisive or deeply felt.
Those factors might not matter in a country with a different judicial system, one where justices respected long-held precedent even if it conflicted with their personal views. Judges would look at Roe, see that nearly 50 years have passed with little change in public sentiment, and leave it at that. But America’s highly politicized Supreme Court has given this fight perpetual momentum.
Conservatives have known for years that they could overturn Roe if they could regain the Court’s majority; sitting justices, after all, have hinted as much. In a concurring opinion in Webster v. Reproductive Health Services (1989), which upheld a law barring public facilities from being used to conduct abortions, Justice Antonin Scalia argued that the majority’s decision did not go far enough—and that Roe should be overturned. And since the legislative branch has not codified abortion rights into federal law, due to the divide over abortion in Congress, Roe has remained vulnerable.
Judicial networks like the Federalist Society, founded in 1982 and funded in large part by Richard Scaife and Charles and David Koch, helped create a pipeline of judges willing to overturn Roe who would eventually ascend to the Supreme Court. Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett are all current or former Federalist Society members, making Dobbs the culmination of a decades-long effort by those who want to outlaw abortion.
Because of those underlying factors—a divided public, highly motivated activists, and a Supreme Court willing to upend long-held precedent with every new appointment—the battle over legalized abortion has no end in sight. If Dobbsoverturns or significantly scales back Roe as expected, Democrats will be doubly motivated to tilt the Court in their favor, win over state legislatures, and enact laws protecting a woman’s right to choose. In other words, we may be in for another 50-year fight, in which state legislatures are the primary battlegrounds with limited options for armistice.
It’s possible that overturning Roe would shift public opinion in favor of legalized abortion, in part because many Americans seem to have misconceptions about the decision. Polls from the Kaiser Family Foundation and Washington Post–ABC News show that 75 to 79 percent of Americans think decisions about an abortion should be made by a woman and her doctor, while only 20 percent say it should be regulated by law. Yet about 30 percent say Roe should be overturned, meaning that one-third of people who want Roe overturned apparently don’t realize that doing so would take the decision away from a woman and put it into the state’s hands. As awareness grows that overturning Roe would force women in some states to travel hundreds of miles to have an abortion, or that there might not be exceptions for rape or incest, as with Texas’s current law, the pro-choice movement will likely gain new allies. But with the Supreme Court set to have a conservative tilt for decades, even a sizable shift in public sentiment may not matter. Any change would have to come through the democratic process. Unfortunately, that, too, is a pipe dream right now.
The admittedly difficult but most lasting solution would be to change the structure of the Court itself. We cannot count on the Court to reaffirm Roe in the foreseeable future. That’s why reform is essential.
Changes that would help depoliticize the Supreme Court and incentivize greater deference to precedent, such as those I’ve suggested previously—increasing the number of justices to 15, limiting the length of their terms to 10 years, or even choosing from a pool of qualified candidates via lottery—could end the ongoing ideological struggle over the Court’s composition. If such laws had been in place in 1973, Roe would not have been under constant attack, because the odds of overturning the decision would have been much lower. Instead, the system allowed for a disciplined and highly motivated conservative network to take over the federal judiciary and change the laws to the right’s liking.
Of course, it’s a lasting solution that feels years or decades away, but these reforms are worth pursuing because it’s difficult to imagine any other end to the battle over abortion rights. Not to mention that the conservative movement has waged a war that was decades in the making.
As it stands, it is far too easy for opponents of legalized abortion to impose a tyranny of the minority on the majority of Americans who support a woman’s right to choose. It’s high time that the left start pursuing a long-term strategy to beat them.
