The End of Roe in Historical Perspective

On Friday morning, as a woman living in South Carolina, I woke up in a world in which I could obtain an abortion until 20 weeks. By Monday, that window had shrunk to about 6 weeks—before there’s a chance to discover an unwanted pregnancy.[1] Next week, the South Carolina State Legislature will sit in a special called session, seeking to eliminate that right altogether.

Friday’s supreme court ruling in Dobbs v. Jackson (2022) was expected—the majority opinion remained largely unchanged since Justice Samuel Alito’s leaked draft—and Roe v. Wade (1973) has been over-turned.[2] We now have a better understanding of the thinking of the nine justices, and a clearer sense of how many more rights are in jeopardy. The justices voted 6–3 to uphold a restrictive Mississippi abortion law, including Chief Justice John Roberts, and 5–4 to overturn Roe v. Wade, with justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas joining the Alito. Thomas and Kavanaugh wrote concurring opinions, with Chief Justice John Roberts issuing a concurring judgement (indicating he agreed with the case’s disposition, but not the majority’s opinion). Justices Steven Breyer, Sonia Sotomayor, and Elena Kagan penned a sorrowful dissent. The decision leaves states free to ban abortion at any and all points in pregnancy, with no exceptions required for rape, incest, fetal abnormality, or the health of the mother.

Justice Clarence Thomas’s concurring opinion, which goes far beyond the majority, is truly chilling; he writes, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantiative due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”[3] While the majority took away the right to abortion, Thomas threatens our rights to contraception, to sexual privacy, and to same sex marriage. Never before has the Supreme Court overturned settled law to strip Americans of rights once granted; Thomas’s words leave us wondering how many more rights we will lose.

What I offer here is not a comprehensive analysis of this case but one grounded in the histories of the US constitution, religion, women, medicine, and poverty. The human rights implications of this decision are far reaching and terrifying: 50.8% of Americans lost the right to control their reproductive destinies, their health, their futures, and some will lose their lives.[4] But the hints the decision provides into the court’s evolving attitudes towards academic expertise are also cause for alarm.

The Constitution and Religion

Alito’s main argument for overturning Roe v. Wade is that the original case was “egregiously wrong” because due process rights not clearly and consistently granted by the time of the ratification of the 14^th Amendment in 1868 do not exist unless enumerated. This argument is at odds with the court’s ruling a day earlier that unless a particular gun regulation had been consistently in place throughout American history, it is unconstitutional today.[5] In short, for guns, it’s enough to show that the lack of a particular regulation in 1790 makes that regulation unconstitutional today, but when it comes to reproductive rights, the opposite rule applies. Much of Alito’s opinion centers on his argument that abortion was always, or nearly always a crime, in America—an inaccurate understanding of history.

In both England and early America, under Common Law, abortion was widely permitted prior to “quickening”—the moment the pregnant woman feels the fetus begin to move. While quickening typically takes place around 25 weeks, it varies, and the woman herself determines when it occurs, leaving her some control over the permissibility of terminating her pregnancy.[6] Early state laws restricting abortion, beginning in the 1820s, focused largely on protecting women from real or supposedly dangerous terminations; as late as 1859, in 21 out of 33 states, abortion was not a crime, was prohibited only post-quickening, or the penalties for terminating a pregnancy were lower before quickening. But in the 1860s, with the assistance for the American Medical Association, state legislatures began to ban abortions more broadly. They were driven by anti-immigrant and anti-Roman Catholic sentiment and fears that married white Protestant women might not have enough babies. Even so, by 1868, nearly half of the states either continued to permit some abortions or imposed lesser penalties for terminating a pregnancy prior to quickening. And these laws, which the five justices relied on to justify over-turning Roe, penalized the provider of the abortion, not the pregnant woman, as today’s laws threaten to do.

The Dobbs ruling, grounded in the argument that legitimate due process rights must have existed in 1868—a time when only white men could vote—portends disaster for broad swaths of the American public. There are four key constitutional problems with this ruling. First, by essentially rejecting stare decisis, the long-held principle that prior court rulings should be respected due to the social stability and respect for the court that settled law provides, the opinion introduces an instability to the law not seen in the previous century. While the majority insists that both Roe and Casey v. Planned Parenthood (1993) were “egregiously wrong,” as the Dobbs dissent points out, literally none of the facts about abortion have changed since 1973, only the composition of the court. A second ruling, announced three days after Dobbs, underlines the erosion of stare decisis. On June 27, the court’s ruling in Kennedy v. Bremerton (2022) gutted the 1^st Amendment protections against teacher-led prayer in public schools, which date back to Engle v. Vitale (1962). Together, Dobbs and Kennedy suggest that for the foreseeable future, there will be little respect for stare decisis.

Second, this ruling rejects the principle of judicial restraint, the fundamental principle that cases should be decided in as narrow a manner possible, and certainly should not reach beyond the scope of the original case. As historian Heather Cox Richardson argued, the broadening of the Dobbs ruling so far beyond the scope of the original case makes this opinion most akin to the court’s worst decision, Dred Scott v. Sanford (1857). In Dred Scott, Chief Justice Roger Taney stretched far beyond the scope of the original case, extending slavery into previously free federal territories and states and stripping even free Black men of their citizenship.

Chief Justice John Roberts—a George W. Bush appointee with both a reputation for pro-life views and a clear concern for the legitimacy of the court—did not join the majority in Dobbs. Roberts wrote of the majority opinion that it “is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.”[7] Instead, he favored a compromise that would have upheld Mississippi’s law (banning most abortions after 15 weeks), while preserving “a reasonable opportunity” to procure an abortion. Whatever its impact on reproductive rights, Roberts’s approach would have preserved the principle of judicial restraint.

Third, there is every reason to believe that other key rights linked to the 14^th Amendment will come under attack—contraception, inter-racial marriage, privacy in our bedrooms, and same sex marriage. In the months leading up to the ruling, several senators called for the reversals of these related cases.[8] While Alito states that the ruling should not be “understood to cast doubt on precedents that do not concern abortion,” it is difficult to see why that statement, rather than the remainder of the opinion, would be considered by future courts, a point stressed by the dissenting justices. Countering his own protestations, Alito’s own repeated references to taking a “potential life” further suggest that the landmark birth control decision, Griswold v. Connecticut (1965) is in peril—in part because in recent years, many opponents of abortion, including quite a few in public office, have come to insist that oral contraception, IUDs, and emergency contraception cause abortions, rather than prevent pregnancy.

Thomas openly calls for a reconsideration of the rights to use contraception, to same sex sexual intimacy, and to marry someone of the same sex, and suggests that our substantive due process rights might be vulnerable as well. Missing from his list of rights that should be reviewed is inter-racial marriage, which immediately drew public commentary, as many pointed out that this right alone personally benefits Thomas, whose inter-racial marriage is in its thirty-fifth year. All of these rights are grounded in the 14^th Amendment’s due process clause and the resulting right to privacy, the fundamental reasoning in Roe. None of them can be said to have existed at the time of the amendment’s ratification. Many experts believe states may next seek to ban people from traveling out of state to procure abortions, or attempt to penalize people in other states who assist them, a potential restriction on movement unheard of in the post-Civil War United States.[9] Kavanaugh’s unprompted assurance in his concurring opinion that interstate travel “to obtain an abortion” will not be restricted is hardly comforting, because as part of a concurring opinion, it is not legally binding.[10]

Finally, the ruling raises religious freedom questions. While Christianity has not universally opposed abortion, and churches that do arrived at that conclusion relatively late in Christian history, several religions consider abortion a matter of religious freedom. Traditional Jewish law permits abortion, or in some cases requires it, when the health (including psychological well-being) or life of the mother is at risk.[11] Some religious groups are turning to the courts to protect their religious right to abortion, including Congregation L’Dor Va-Dor of Boynton Beach, FL. The synagogue recently filed suit against Florida’s ban on abortion after 15 weeks on the grounds that it “prohibits Jewish women from practicing their faith free of government intrusion and this violates their privacy rights and religious freedom” and that “it threatens the Jewish people by imposing the laws of other religions upon Jews.”[12]

The Federal Religious Freedom Restoration Act (1993) raised the standard for laws that infringe on religious freedom to strict scrutiny—the highest level of protection. Strict scrutiny forces a state to meet a much higher threshold to prove the law was necessary and written as narrowly as possible. This would be a more difficult standard for a state to meet than the much lower bar of rational basis that the majority found applies in Dobbs. And this month’s effective reversal of earlier rulings restricting employees from leading prayer in public schools further argues for religious exemptions from abortion restrictions. Given the court’s recent lack of consistency and respect for established law, however, a ruling in favor of religious freedom as it pertains to reproductive rights seems unlikely.

Women’s History and the History of Medicine

As noted by many—in the dissent, in print, and on protest signs—this ruling drips with contempt for women. Alito ignores the painful reality that women could not vote at the time of the ratification of the 14^th Amendment; white women would have to wait another 82 years, while many women of color had to wait even longer. Yet he argues that women are entitled to no relief from the court in this matter because they not only can vote but do so today in greater numbers than men. This logic makes forced pregnancy and birth not only a punishment for women’s sexual activities, but for their exercise of their 19^th Amendment rights.[13]

At no point does the majority opinion evince any concern for the wellbeing of those who are actually pregnant, nor does it address the reality that pregnancy imposes significantly higher risks of health problems and death than legal abortion. In addition to the common health problems pregnancy imposes, the chance of needing major surgery, and the risk of permanent disability, Americans are 14 times more likely to die if they remain pregnant than if they have an abortion. This figure only includes pregnancy-related medical complications, not the increased risks of domestic violence faced by pregnant women. A ban on abortion is estimated to increase white women’s chance of death by 13% and Black women’s chance by 33%, figures in line with findings that maternal mortality rates are approximately three times higher among Black women than white women.[14]

The ruling also ignores several issues with the Mississippi law in particular that are of grave concern. It offers no exceptions to preserve the health or life of the pregnant woman, outside of an immediate medical emergency, which makes the majority’s disregard for women’s wellbeing even more disturbing. Questions remain about treatment for ectopic pregnancy and incomplete miscarriages, both of which can become fatal quickly. And many states have eliminated the mental health exception as well, one that was widely used by in the pre-Roe era to obtain legal and safe abortions in hospitals.

Finally, neither the Mississippi law nor the ruling makes any mention of exceptions in the case of rape and incest. Girls who are victims of incest are at a particularly high risk of pregnancy due to the ongoing nature of their assaults. Likewise, women raped by their partners are most likely to experience reproductive coercion and to become pregnant. All of this should remind us that it was not until 1976 that Nebraska became the first state to ban marital rape and that it took 17 additional years before all US states imposed some degree of restrictions on marital rape exemptions. The right to be free from sexual assault from one’s husband, is clearly less “deeply rooted in our history or traditions”—Alito’s standard—than the right to abortion, which underlines the alarming disregard for women’s mental and physical health embodied by the Dobbs ruling and, we can presume, future rulings by this court.[15]

Poverty

Laws severely restricting or banning abortions will have significantly greater impact on the poor—whether they give birth or not. In the pre-Roe era, access to safe (not necessarily legal) abortions was linked to economic status. For instance, during the Great Depression, when abortion rates spiked, poor and Black women were most likely to self-induce an abortion. Complication rates were linked to the quality of care, which in turn reflected class: when doctors performed abortions (largely for wealthy women), only 9% experienced complications; when midwives performed them (largely for middle-class women), only 14% did. These figures contrast sharply with the 76% of self-induced abortions that resulted in complications; 15,000 women a year died from abortion complications, a majority of them victims of self-induced abortions.

In recent years, three quarters of women who terminated a pregnancy lived near or below the poverty line. Those living in poverty will be disproportionately impacted by this ruling, as they lack the funds to travel long distances to obtain abortions; lack the funds to pay for childcare (the majority of people who terminate a pregnancy are already parents); and are more likely to hold jobs where they might be fired for missing a few days of work.[16] In short, state-level abortion bans will likely increase poverty; a recent study followed 1,000 women from around the country who sought abortions and found that those who were denied access to an abortion were four times more likely to be living in poverty four years later, as will their children.[17]

Of the nineteen states that now ban or significantly restriction abortions, eight have also rejected Medicaid expansion, the program that provides insurance for the first year after giving birth. This is of particular concern, as 50% of maternal deaths, which are often preventable with medical care, occur post-partum. The United States continues to have the highest maternal mortality rate among developed nations, and that rate has increased in recent years. Women living in middle- and high-poverty counties have, respectively, 60% and 100% higher rates of maternal mortality rates compared to women living in low-poverty counties. For every woman who has a pregnancy-related death, 50 will experience a severe or life-threatening complication.[18] Due to their state’s refusal to accept Medicaid expansion, in Alabama, Florida, Georgia, Mississippi, South Carolina, South Dakota, Tennessee, and Texas even higher numbers of post-partum patients will disproportionately suffer complications resulting in disability or death.

Nor does the ruling take seriously the financial problems pregnancy often imposes. Alito points to the post-Roe development of parental leave, but omits any acknowledgement that 46% of American woman workers are not eligible for even unpaid leave through the Family and Medical Leave Act (FMLA). Single women are statistically less likely to be covered under FMLA and only ten states mandate paid time to off recover from giving birth; even those protections only apply in some circumstances. Even those choosing adoption are not guaranteed paid time off, or protections against being fired for missing work while giving birth and recovering from childbirth. Nonetheless, Alito critiques the dissenting justices for devoting too much attention to the medical and financial harm done to pregnant women at the expense of fetal life.[19]

It is hard not to see the links between the discussions of adoption surrounding this case and some of the ugliest parts of American history: pre-1865, when slave owners stole Black children from their parents; the 1950s, when young white women were coerced into surrendering their children for adoption by middle-class couples; and the 1960 and 70s, when fewer white infants were available and white families turned to adopting Native American children seized by the state.[20] Alito cites a 2008 CDC report to note the lack of supply of “infants relinquished at birth or within the first month of life and available to be adopted.”[21] While he includes the report as part of his summary of arguments against abortion, it brings to mind a more explicit argument made in many pro-life circles: that women who terminate pregnancies unfairly deprive infertile married couples of their right to become parents. The inclusion of the quote from the report may be attributable to Barrett, who suggested in oral arguments that abandoning babies under “safe haven laws” would be a sufficient protection from the “obligations of parenthood,” although 80% of women who die do so giving birth or post-partum. Taken together, Alito’s quotation and Barrett’s question hint at a disturbing possibility: that the majority’s reasoning followed those of the doctors and state legislators in the 1860s, who believed that not enough of the “right” children were being born. For families seeking to adopt children, there are currently more than 117,000 children eligible for adoption languishing the in foster care system. But unlike “safe haven” children, who are infants, the median age of a child in foster care is 7.7 years old, and many have difficult histories.

Racism shapes this conversation as well, as children in foster care are disproportionately Black or Native American and Black children are less likely to be adopted than white children. Congresswoman Mary Miller (R-Ill.) invoked an explicitly white supremacist pro-life agenda at a campaign rally one day after the ruling was announced, when she praised former President Trump, who appointed three of the five justices in the Dobbs majority, for “a historic victory for white life.”

Roe and the Future of Expertise

For academics, this ruling should set off an alarm. It is telling that Alito cites the deceased male philosopher Isaiah Berlin while ignoring the many living female scholars who have written extensively on the history of abortion in the United States.[22] More broadly, the majority opinion largely ignores the amicus brief co-authored by the American Historical Association (AHA) and the Organization of American Historians (OAH). The exhaustively researched brief documents abortion’s general legality until the late nineteenth century, when the racially and religiously motivated push to restrict abortion rights succeeded, an inconvenient challenge to Alito’s narrative. Alito mentions the brief only in passing, largely to mock the assertion that anti-Catholic bigotry motivated late nineteenth-century abortion bans and to quibble over the number of states who had banned abortion in 1868.

Alito’s rejection of historians’ expertise is part of the court’s broader trend of ignoring or defying the guidance of experts. In this case, the majority made no mention of amicus briefs (to cite a few examples among many) from the American College of Obstetricians and Gynecologists, concerning the dangers this ban would pose to women; the Society for Maternal-Fetal Medicine, regarding the fallacy of fetal pain before 24 weeks; and the International Federation of Gynecology and Obstetrics, offering evidence that restrictions on legal abortion harm women while failing to reduce the number of abortions. Most notably, the court ignored the brief filed by the American Bar Association and 236 members of Congress, arguing for respect for stare decisis in this case.[23]

Alito’s rejection of professional expertise, including that of historians, almost certainly stems from his long-standing hostility to abortion rights, which he made public as early as the 1980s. Dobbs appears to have been a ruling in search of a justification, with  experts offering evidence that Alito and the majority found inconvenient. It is no coincidence that in the same moment and the same states where a right to choose is in peril, so too is the right of historians to teach history, with many of the same states banning abortion also seeking to ban honest conversations about race in the classroom, the misnamed “critical race theory” bans. Justices Breyer, Sotomayor, and Kagan concluded their dissent with a lament: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”[24] As a historian, I would add, “with sorrow for the truth.”

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Featured image: Abortion protest poster at Frankfurt Women’s March. Photo by ZeWrestler, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons.

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Editors’ Note: The author and editors recognize that the Dobbs ruling impacts the reproductive rights of women, trans people, and non-binary people in 2022 and beyond. Where historical laws and texts, existing data, and the Dobbs case use the words woman and women or refer explicitly to women, that language appears in this piece.

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[1] While the bill is called, as in other states, a fetal heartbeat bill, at six weeks the heart has not yet formed.

[2] Dobbs, State Health Officer of the Mississippi Department of Health, et. al. v. Jackson Women’s Health Organization, June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf; https://www.census.gov/quickfacts/fact/table/US/LFE046220.

[3] Thomas concurring in Dobbs v. Jackson, 3.

[4] Dobbs, State Health Officer of the Mississippi Department of Health, et. al. v. Jackson Women’s Health Organization, June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf; https://www.census.gov/quickfacts/fact/table/US/LFE046220.

[5] New York State Rifle and Pistol Association Inc., et. al. v. Bruen, Superintendent of New York State Police, et. al, June 23, 2022, https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf.

[6] For a comprehensive overview of abortion laws in American history, see “Brief for Amici Curiae American Historical Association and Organization of American Historians in Support of Respondents” in Dobbs v. Jackson, https://reproductiverights.org/wp-content/uploads/2021/09/Historians-Amicus-Brief.pdf.

[7] Roberts, concurring in judgement in Dobbs v. Jackson (2022), 2.

[8] Senator M. Braun (R-Ind.) has questioned the right to inter-racial marriage, Senator Marsha Brown (R-Tenn.) the right to use contraception, and Senator John Coryn (R-Tex.) the right to same-sex marriage.

[9] “Abortion-Travel Bans are ‘Next Frontier’ With Roe Set to Topple,” Bloomberg Law, May 4, 2022, https://news.bloomberglaw.com/health-law-and-business/abortion-travel-bans-emerge-as-next-frontier-after-roes-end; Ava Sasani, “Is it legal for women to travel out of state for an abortion?” New York Times, June 24, 2022, https://www.nytimes.com/2022/06/24/us/abortion-travel-bans.html.

[10] Kavanaugh concurring in Dobbs v. Jackson (2022), 10.

[11] Sarah Parks, Shayna Sheinfeld, and Meredith J.C. Warren, Jewish and Christian Women in the Ancient Mediterranean (London: Routledge, 2022), 193-195; “Abortion and Catholic Thought. The Little-Known History,” Conscience, 1996 Autumn 17(3): 2-5.

[12] Alito writing for the majority in Dobbs v. Jackson (2022), 65-66.

[13] Breyer, Sotomayor, and Kagan dissenting in Dobbs v. Jackson, 22—citing Whole Women’s Health v. Hellerstedt (2016) and 39—citing L. Harris, “Navigating Loss of Abortion Services—A Large Academic Medical Center Prepares for the Overturn of Roe v. Wade,” New England Journal of Medicine, 2022.

[14] CDC, “Vital Signs: Pregnancy-Related Deaths, United States, 2011–2015, and Strategies for Prevention, 13 States, 2013–2017,” https://www.cdc.gov/mmwr/volumes/68/wr/mm6818e1.htm.

[15] Alito writing for the majority in Dobbs v. Jackson (2022), 5.

[16] “Who Gets Abortions in America?” New York Times, Dec. 14, 2021, https://www.nytimes.com/interactive/2021/12/14/upshot/who-gets-abortions-in-america.html.

[17] Diana Greene Foster, The Turnaway Study: The Cost of Denying Women Access to Abortion (Scribner, 2020).

[18] American Public Health Association, “Reducing US Maternal Mortality as a Human Right,” Nov. 1, 2011, https://www.apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2014/07/11/15/59/reducing-us-maternal-mortality-as-a-human-right/#:~:text=Women%20living%20in%20counties%20with,living%20in%20low%2Dpoverty%20areas.

[19] Alito, 38.

[20] See Peggy Cooper Davis, Neglected Stories: The Constitution and Family Values (Hill and Wang, 1998); Karen Wilson-Buterbaugh, The Baby Scoop Era: Unwed Mothers, Infant Adoption and Forced Surrender (2017); and Margaret D. Jacobs, “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s,” The American Indian Quarterly 37(1): 136-159.

[21] Alito writing for the majority in Dobbs v. Jackson (2022), 34.

[22] See especially Linda Greenhouse and Reva B. Seigel, Before Roe v. Wade: Voices that Shaped the Abortion Debate before the Supreme Court’s Rulings, 2^nd edition (New Haven, CT: Yale Law Library, 2012).

[23] Ellena Erskine, “We read all the amicus briefs so you don’t have to,” Scotusblog, Nov. 30, 2021, https://www.scotusblog.com/2021/11/we-read-all-the-amicus-briefs-in-dobbs-so-you-dont-have-to/ for a summary of the use of the briefs in the case; see “Amicus Briefs: Dobbs v. Jackson Women’s Health Organization,” Center for Reproductive Rights, https://reproductiverights.org/case/scotus-mississippi-abortion-ban/amicus-briefs-dobbs-v-jackson-womens-health-organization/ for a list and links to the other briefs filed.

[24] Dissent in Dobbs v. Jackson (2022), 60.