The end of Roe v. Wade spawned a momentous realignment of abortion politics and legal strategy in the United States. Almost a third of states in this country now ban almost all abortions, while more than a third have passed new laws protecting abortion rights — with many legal battles playing out in state and federal courtrooms. The issue has dominated elections, from surprise ballot initiative results in red states to an anomalous midterm election.
Fifty years ago, the anti-abortion movement was in a similar spot, having just lost at the nation’s highest court. By 1974, a year after Roe v. Wade was decided, the anti-abortion movement had already begun crafting and even putting in place a multifaceted, long-term strategy to overturn what it saw as an egregiously wrong decision.
Today, a year after Dobbs v. Jackson Women’s Health Organization, where is the plan to overturn that decision? Though the political backlash to Dobbs has buoyed the abortion rights movement, the results of that backlash, in gains in abortion access, will be limited. State laws protecting abortion rights and access will help only those who live in or can afford to travel to those states, leaving behind many low-income patients across the South and Midwest. Even if Congress were to pass a law creating a federal abortion right, it could be even less protective than Roe and could leave unaddressed the threat Dobbs poses to other constitutional rights; it also might not survive a constitutional challenge. So change has to come from the high court, too. It’s time to make a plan to confront Dobbs head-on.
The general rule that courts follow precedent is, as Justice Samuel Alito restated in his Dobbs opinion, “at its weakest” in matters of constitutional law. He continued that, in the face of an “erroneous constitutional decision,” there are two options: amend the Constitution or “reconsider and, if necessary, overrule” the case in question. The anti-abortion movement took these two options seriously when it faced what it believed to be a disastrous decision in Roe. In the years following Roe, the movement engaged in litigation to chip away at abortion rights, focused on appointing anti-abortion judges and worked to undermine some principles upon which Roe depended, like the viability standard. It was undeterred even when the Supreme Court repeatedly reaffirmed Roe’s central holding. Almost half a century later, the movement’s work finally paid off.
To state the obvious, overturning Dobbs is not going to be simple. The work will be daunting, requiring a multipronged and complex attack. It will also require patience, as overturning Dobbs will require the courts to become more hospitable to abortion. We have no idea when a different future will come: It may come unexpectedly soon, or it may be several decades from now. But that did not deter the anti-abortion movement in 1974, and it should not deter the abortion rights movement in 2023.
Essential work is being done by lawyers, advocates and abortion providers across the country who are fighting to improve abortion access right now. But we also need to think about the years and decades to come.
Here are some places to start.
Public discourse plays an important role. The anti-abortion side, even in the face of many defeats, talked about Roe for half a century as bad law that would not last. We need to do the same with Dobbs and frame the decision not only as wrongly decided but as temporary. There’s a strong case for both claims, and characterizing Dobbs as flawed and fleeting can shift how people think about the case.
In addition to advancing legislation to protect abortion access, which is an important track to pursue, abortion-supportive members of Congress should also put forth proposals for constitutional amendments protecting abortion rights and reproductive justice. The hurdle to amend the Constitution is almost impossibly high. Nonetheless, introducing such an amendment, something the anti-abortion movement first did the same month that Roe was decided, is an important step in communicating that Dobbs need not be the permanent law of the land.
In the same vein, Democrats must make overturning Dobbs a central part of their party platform. Starting in 1976, Republicans included language about ending constitutional protection for abortion in their platforms every four years. Reproductive rights and justice have only recently become central to the Democratic Party platform; for the 2024 election and beyond, the platform should also foreground expanding access within the Dobbs framework and jettisoning Dobbs itself.
Further, President Biden should nominate judges who will critically assess Dobbs. Lower court judges are bound by Supreme Court precedent, but they have some tools at their disposal. They can write separate opinions that, while recognizing they must apply Dobbs, critically evaluate it, helping lay the groundwork for its eventual overruling. They can also give the historically permissive “rational basis” standard of review from the Dobbs opinion some teeth by more closely assessing abortion restrictions and the state’s purported rationales.
Lawyers will need to bring cases raising novel issues so that judges can protect abortion rights in new ways. For decades, the anti-abortion movement pursued numerous creative theories at once. It was impossible to predict which theories would succeed. Indeed, many failed. But some chipped away at or severely curtailed abortion access, contributing to the eventual toppling of Roe. Alternative theories can test how the law protects abortion rights — legal arguments rooted in equality, freedom of religion, involuntary servitude and federal pre-emption of state laws, among others. Lawyers should also file briefs arguing for Dobbs’s reversal in the abortion cases that reach the Supreme Court, just as anti-abortion lawyers did in the Roe era.
Even if cases and briefs in federal courts lose in the short term, having abortion cases in the pipeline is essential. The Supreme Court will not always look as it does today. Some of the justices are relatively young, but others are not, and their seats could become vacant at any time. When the shift in the court’s makeup happens, there must be cases ready for it to hear that would provide a vehicle for overturning Dobbs. That’s precisely what happened in Dobbs — a case that lost twice in the lower courts under Roe became the case to overturn it when the Supreme Court’s composition changed unexpectedly.
As litigation proliferates, Dobbs will reveal itself to be unworkable. This is a key factor the court relied on to overturn Roe and its progeny. Dobbs based its reasoning in part on how difficult the court’s majority believed it was to apply the relevant legal standards consistently. The test announced in Dobbs will likely suffer the same fate. Lower courts will almost certainly reach different conclusions about whether novel legal theories supporting abortion rights are viable and how rational basis applies to a variety of issues, such as medical exceptions to abortion bans, the application of laws beyond state borders and criminal sanctions against patients.
Scholars, researchers and funders have an important role to play as well. Scholars need to develop a persuasive, consistent and multidisciplinary response to the flawed history and theory in the Dobbs majority. Many have already begun to illustrate the errors in Justice Alito’s opinion as well as the impact of the decision’s logic for other areas of the law — another compelling reason to overrule the case. Researchers have begun to document the harms that Dobbs has wrought. Philanthropic funders, who are the backbone of abortion rights activism and legal strategy, need to put resources behind all of these efforts, even those that might involve short-term losses.
Developing a long-term vision to overturn Dobbs doesn’t mean simply returning to Roe. That case provided a national baseline that prohibited every state from banning abortion until the point of fetal viability. But it also had significant shortcomings. It did not guarantee abortion access for people without financial resources, who are disproportionately people of color. It said little about the broader rights of pregnant people. And the interpretation the court gave it in later cases was too forgiving of states regulating abortion.
Reproductive justice advocates have long envisioned a better abortion decision from the Supreme Court that addresses Roe’s weaknesses. Developing a strategy now to overrule Dobbs is necessary to move closer to that desired reality. It won’t be easy, and it likely won’t be quick. But if ever there were a time for hope — and for a strategy directly targeting Dobbs — this is it.
David S. Cohen is a professor of law at Drexel University’s Kline School of Law and a co-author of “Obstacle Course: The Everyday Struggle to Get an Abortion in America.” Greer Donley is an associate professor at the University of Pittsburgh Law School, where her scholarship focuses on abortion and the law. Rachel Rebouché is a professor of law and the dean of Temple University’s Beasley School of Law, where her scholarship focuses on reproductive health, family law and contracts.
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