ANALYSIS: The Supreme Court rolls back a right and inflames a divided country

A handful of Supreme Court cases are etched in the America’s collective consciousness. Friday’s ruling in Dobbs v. Jackson Women’s Health Organization will now join that list - to be remembered for a historic reversal of a constitutional right enshrined for half a century and for further inflaming an already deeply divided country.

By overturning Roe v. Wade and ending the guaranteed right to abortion nationwide, the court’s newly entrenched conservative bloc has set the country on a course toward legal and political warfare destined to last for years, a conflict perhaps even more intense than the one that has raged since Roe was decided in 1973.

The implications of the court’s ruling are difficult to overstate and nearly impossible to predict. The immediate impact will be felt by millions of women in states that will now outlaw abortions in all or virtually all circumstances. But it could be felt as well by others who now fear their rights are in danger, particularly those in the LGBTQ community.

The longer-term effects could further separate the country into culturally divided red and blue enclaves, with sharply different laws and rights, adding to the balkanization of the United States. Eventually it could - could - contribute to a reshaping of the political landscape of the country, though that depends on the degree to which abortion rights supporters - and opponents of the court’s current composition - mobilize in the way that abortion opponents have done for decades.

In undoing something that has shaped the lives of women for several generations now, the court has taken on a moral issue, on which many Americans have complicated and sometimes conflicting feelings, and seemingly eschewed any search for middle ground.

Only Chief Justice John Roberts, among the court’s six conservative, sought a less divisive route. He failed to bring along his fellow conservatives, who chose a more absolutist path, and joined them in striking down Roe. Now no other decision is likely to define the Roberts court in history as much as this one.

Friday’s ruling is a triumph for the doctrine of originalism, with significant consequences for a country with an increasingly diverse and tolerant population. “The version of American history you get from constraining your historical evidence to the documents originalists see as mythical gives you centuries of constitutional history when women and people of color were completely disenfranchised,” historian Jill Lepore said Friday. “And that’s the basis now for the continued denial of rights.”


The court has been looked at, perhaps overly so in recent years, as a branch of government that has advanced the cause of rights for all Americans. Much of that reputation was earned during the years when Earl Warren, the former governor of California, was the chief justice. During his tenure, the court ordered the desegregation of schools in Brown v. Board of Education, upheld the constitutionality of the 1964 Civil Rights Act and guaranteed the right of married couples to contraception.

More recently, the court has been of mixed minds on the issue of rights, moving in a more progressive direction on same-sex marriage but chipping away rights in other areas, particularly voting rights. “I think this decision is likely to put an exclamation point on a change of direction by the court that has been going on for decades,” said William Galston of the Brookings Institution. “After this decision, no one will have to be persuaded that we are living in a new era.”

That new era could, for some Americans, seem like a very old era, one in which the rights of women and minorities were limited or nonexistent. Justice Samuel Alito, writing for the majority, sought to tamp down such fears by noting that the legal arguments that led to the overturning of Roe were unique to the issue of abortion. But Justice Clarence Thomas, in a concurring opinion, suggested that a whole body of rights should now be up for reconsideration, including same-sex marriage.

Friday’s ruling was foreshadowed when Politico published in May a leaked draft of Alito’s strongly worded opinion amid signs that not only were there enough votes to uphold the Mississippi law that banned abortion after 15 weeks but also to go further and overturn Roe outright. And yet the ultimate decision landed Friday morning with extraordinary power, a legal thunderclap that closed down any hope that the court would seek an outcome that would have further restricted but not eliminated a woman’s right to abortion.

Despair and celebration followed the announcement. President Joe Biden, speaking just hours after the ruling was issued, vowed that the fight to legalize abortion nationally “must not be the final word,” and called on those seeking to preserve that right to show up and vote in November. “This fall,” he said, “Roe is on the ballot,” as he echoed words of an angry House Speaker Nancy Pelosi, D-Calif., who spoke earlier in the day.

Abortion opponents, cheered by a legal victory sought ever since Roe was decided, pushed in the opposite direction. Former vice president Mike Pence, one of the nation’s staunchest abortion opponents, hailed the ruling and called for like-minded people to push for bans on the procedure in every state in the country. “We must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land,” he told Breitbart News.

This is moment that abortion opponents have long dreamed of and that abortion supporters have long dreaded. But neither can be certain of how this will ripple and spread in time. Predictions about the future come with big caveats.

Public opinion generally is on the side of those who favor legal abortion in most cases and those who have favored a continuation of the rights under Roe. But lacking numbers in Congress, they do not have the power to enact a national law codifying Roe. They must mobilize in ways they’ve not done before to convert public opinion into political leverage.

Abortion opponents and Republican elected officials may get their way in many states, but there are risks to their standing nationally. And any attempt to enact a national law outlawing abortion, should Republicans take control of the House and Senate in November, could be met by fierce public opposition and a political backlash.

Each year the Supreme Court takes on major cases involving some of the most divisive issues before the country. Just one day before issuing its abortion ruling, the court struck down a century-old New York law that put restrictions on the right to carry guns in public. Controversial as that was and coming just as Congress was approving the first gun safety law in years, it was barely a prelude to the decision to overturn Roe.

The high court’s conservative block, created by three nominations by former president Donald Trump and ensured by the earlier legislative maneuvering of Senate Minority Leader Mitch McConnell, R-Ky., that was expressly designed to deny liberal additions to the court, now has the last word on the most important issues of jurisprudence. Friday’s decision underscored the power those justices now hold and raised the question of what comes next.