Before Dobbs v. Jackson Women’s Health Organization—the case that overturned Roe v. Wade—almost everyone assumed that polarization would continue to define the abortion debate: once states could ban abortion before viability, half the country would criminalize it and half the country would not. The assumption has been that states would prohibit or permit abortion in ways that correspond to political beliefs. This Article demonstrates the limitations of that narrative both as a matter of history and in the current political moment. The future of abortion law and politics is one of fracture. Particularly for the anti-abortion movement, once-foundational priorities will come under pressure, shifting legislative and litigation strategies at the state and federal levels.
We map fracture along three critical fault lines: the legal recognition of fetal personhood, the definition of abortion, and the movement for reproductive justice. First, the majority opinion in Dobbs wields the rhetoric of neutrality to advance a singular understanding of history and tradition, defined by efforts to overturn Roe. We show how Dobbs charts a course for recognizing fetal personhood but with the costs of contestation and undermining the majority opinion’s purported neutrality. Significantly, Dobbs has exposed divisions in the anti-abortion movement, which has refashioned its support for fetal personhood in new state laws, raising questions about enforcement inside and outside state borders. Second, Dobbs incited a new struggle over what abortion entails, and both abortion supporters and opponents will contend with whether recent bans include fertility services or specific contraceptives as well as how bans apply when patients face medical emergencies. At the same time, because the nature of early abortion care has changed—available through mailed pills taken at home—abortion will be harder to police and stop. Third and finally, fracture within the abortion-rights movement will become more pronounced as the call for reproductive justice takes on different importance. The end of Roe will realign priorities in litigation, policymaking, and resource allocation around broader issues of social justice. The coming era will be defined by divergent views about who may speak on behalf of those neglected by the law and what it means to recognize the basic humanity of the most marginalized in the country. But as those views are tested for their political and practical feasibility, we should expect abortion antipathy as well as abortion support to be less tethered to party affiliation and more reflective of abortion care on the ground.
Rachel Rebouché & Mary Ziegler,
Fracture: Abortion Law and Politics After Dobbs,
SMU L. Rev.