Everybody with even passing familiarity with the Roe decision has known for 49 years that it was on shaky ground. Former (deceased) Justice Ruth Bader Ginsburg herself didn’t approve of Roe and believed it was destined to be overturned eventually.
"Doctrinal limbs too swiftly shaped...may prove unstable."
- Justice Ruth Bader Ginsburg, New York University 1992
Consistent with Ginsburg’s prediction, conservatives spent decades building the legal case and then finally attaining the Supreme Court makeup that would abolish the monstrosity that was Roe. Alito’s majority opinion is a masterpiece to behold, but frankly any lawyer could have assembled this decision - it being easier to render judicial decisions when you’re not trying to confuse, distort and pretend you’re not doing something that is beyond your constitutional authority. I’d wager Alito and his clerks had great joy writing it.
But since we all knew this day was coming, one might ask why the Democrats didn’t prepare for it? A woman’s “right to choose” is practically speaking a religious sacrament among the Democrats. Democrats spent 49 years warning their faithful the Republicans were coming after Roe and only they (the Democrats) could protect it. The Republicans, to their benefit, didn’t deny it - they even made overturning Roe a permanent plank in the party’s platform, beginning in 1976.
So Roe was indeed anything but decisive and unifying as its authors had intended. The ensuing 49 years were marked by massive demonstrations, debates, countless legal challenges and even a proposed constitutional amendment. The warnings were abundant and clear - so why no action all these years from the party of abortion?
There are actually several reasons, some (all?) of which trace back to the original shoddy constitutional ground upon which the Roe decision itself was built. Let’s start with the legislative remedy.
The problems with a Congressional solution to Roe are at least twofold:
The Constitution and the Courts. First, the constitution doesn’t grant the legislature authority to confer a constitutional “right” anymore than it does the judiciary. While Congress can write laws that govern commerce, to some extent, and medical practices are a form of commerce, how would they phrase a law that sought to guarantee a certain medical practice (abortion) would be protected and available in all 50 states - without getting crosswise with the Supreme Court and the Tenth Amendment? And not just any Supreme Court, but this Supreme Court? While previous courts gave much greater leeway to Congress governing interstate commerce, this court has signaled that thin reed won’t endlessly support regulating everything a person chooses to do - or not do. There are currently 50 state legislatures busy examining abortion and developing their own unique legislative approaches - how would they react to a one-size-fits-all solution from Washington?
Finding a Compromise. This introduces the second significant challenge to a Congressional remedy: what precisely would that look like? In places like New York and California, abortion is approved up to and including the moment before birth. In nearly all other western nations, abortion is permitted until the 20th week, with some restricting abortion even earlier. Many US states already had restrictions beyond the second trimester and the Dobbs case itself sought to deny abortions beyond the 15th week. So what would a one-size-fits-all Congressional solution look like? Trying to impose a New York-California solution on the other 48 states would surely not attain majority support, while allowing more restrictive timelines (like those found in most other western countries) would lose the support of the House Speaker and Senate Majority Leader themselves. Consider West Virginia Senator Joe Manchin: what would it take to gain his vote? And how many votes would Democrats lose in both the House and Senate to get him onboard?
So even if one allows for a constitutional framework for passing the Women’s Health Protection Act, there are still monumental, irreconcilable political differences that just can’t be accounted for. This is likely why WHPA has failed to pass Congress in 2013, 2015, 2017, 2019 and 2021 - even when Democrats had majorities in both houses and occupied the White House.
Perhaps you’re starting to see the problem and why it’s wiser to just leave this up to the States to decide.
And there are more (but less lofty) reasons a legislative solution will not be likely:
Crass Partisan Politics. The Democrats spent the past 49 years cynically whipping the abortion faithful in line, reliably voting for Democrats and donating to their cause. Remedying the Dobbs decision with something like WHPA has to be among the last things the Democrats want right now. Abortion has been (if you’ll forgive the gruesome pun) the “lifeblood” of their caucus. They need an agitated and infuriated base, especially this coming November (but they always need them, so what are we really saying here?). And they already could have codified something like Roe five times in the past ten years - but they didn’t. For a more thorough treatment on this, see The Outrage Engine by my friend Peter Venetoklis.
The Sinema Rule. There’s also the Sinema Rule in play. Arizona Senator Kyrsten Sinema has resisted ending the Senate’s filibuster rule for various reasons, including to pass an abortion bill:
"To those who want to eliminate the legislative filibuster to expand health-care access...would it be good for our country if we did, only to later see that legislation replaced by legislation...defunding women's reproductive health services?"
Specifically, with regard to abortion, Sinema fears a future Republican majority might consider banning abortion in all 50 states, or imposing a much more restrictive regime than the present “best case” scenario where each state decides for itself. Regardless, without Senator Joe Manchin on board, the Democrats don’t have the 51 votes to pass the Senate even without the filibuster.
Opinion Migration. This last bit of reasoning will not show itself for a while. In fact, we may not notice it for several years. But it will become, over time, yet another significant obstacle to “just passing a law”. Consider that Roe is no longer extant - meaning 330 million Americans can no longer point to Roe as cover for their opinion. Citizens now have a responsibility to examine the issue for themselves. Many conservative pundits believe that as citizens confront the abortion issue personally for the first time, they will be more likely to support restrictions or even outright bans of abortion. Two generations of Americans have grown up under Roe and have used the “constitutional right” to limit further inquiry or understanding of the issue. Surely Dobbs will affect public opinion over time.
No matter where you fall on the abortion issue, Roe (and Casey) short circuited the political process, resolving nothing. The Dobbs decision places it back within those political processes where it always belonged, constitutionally.
“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
- Justice Alito, writing for the majority opinion in Dobbs v. Jackson Women’s Health Organization.
Reading these words, I cannot fathom a one-size-fits-all legislative solution coming from either a Democrat or Republican-controlled Congress that would address the multiple constitutional and political challenges that underlie this “profound moral question”. Do you?
Great summary! I would suggest one more limitation - the Democrats have forgotten how to pass a law. They already tried to "codify" Roe and couldn't get the votes. They have depended on the judiciary for decades to implement an agenda that never could pass a vote in Congress, now imagine they have to go to all 50 states to do it. They won't because the have lost the power to persuade.
It has been incredibly successful, the shrank the audience down to a judge or a jury or the SCOTUS and convincing a few people in a trial or the SCOTUS is far easier than trying to sway millions of people who have millions of different takes on a subject. What scares them the most is that in the past week, they may be seeing the beginning of the end of judicial activism as their primary tool.
I know I'm late in reading this, but it's excellent, and explains the Dobbs decision, among other things, very well, and briefly. Thank you!