Editor’s Note: Mary Ziegler is the author of “Abortion and the Law in America: Roe v. Wade to the Present” and “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.” The views expressed in this commentary are her own. Read more opinion on CNN.
While there are plenty of people who have long sounded the alarm on the Supreme Court overturning Roe v. Wade and rolling back abortion rights, that does not make this moment any less dizzying.
With Friday’s decision, the United States has joined that list. The Supreme Court held that there is no constitutional provision that protects the right to abortion and that Roe v. Wade was egregiously wrong the day it was decided.
The court not only rejected the reasoning of the 1973 decision but tried to shut the door on any future constitutional argument for abortion rights. Roughly half of all states are expected to criminalize virtually all abortions in the weeks and months ahead. What does this all mean?
The fallout from this decision will be harder to process in part because we have never been in this position before. True, many states had previously criminalized abortion before Roe, but the world has changed a great deal since 1973. What seems clear now is that the decades-long war on abortion will continue – and may contribute more broadly to a democratic decline in the US.
For nearly a century before Roe, abortion in the US was broadly inaccessible, as the vast majority of states treated it as a crime unless a pregnant person’s life was at risk. In the early 1970s, only Alaska, Hawaii, New York and Washington allowed abortions, with three of those four states implementing a residency requirement for those seeking the medical procedure.
After Friday’s decision, the patchwork of state abortion laws will be even more complicated. While there are certainly more states today that support abortion rights, about 26 states have laws indicating they intend to ban it, according to the Guttmacher Institute. Others, like Florida, will restrict abortion and allow for some exceptions.
Abortion is also now much harder to stop than it was before Roe – studies have found that telehealth abortion is safe under the right circumstances, and organizations like Aid Access routinely mail abortion pills across the world, including to countries and states where the procedure is banned.
But the world has also changed in ways that make this a dark moment. America is far more politically polarized now than it was when Roe was first decided. Negative partisanship – the intensity with which people dislike those who disagree with them politically – has grown since the 1980s. In this political climate, conservative lawmakers are more likely to take extreme stances on abortion and, in some cases, seek to punish abortion providers and pregnant people without doing anything to help new parents or children.
In the 1960s and 1970s, the anti-abortion movement was strongest in Catholic communities in the Northeast. Given that many of these states had solid Democratic footholds, candidates with strong anti-abortion convictions were sometimes forced to temper their public positions to win general elections.
After all, while Americans have long supported restrictions on abortion, especially later in pregnancy, they have tended to oppose criminalizing the procedure or eliminating abortion rights altogether. That meant that Republican candidates and lawmakers used to stand by certain exceptions to abortion bans – like those for rape or incest.
But today, the anti-abortion movement is strongest in the South, where Democrats and independents often stand no real chance of winning control of state legislatures. Given this landscape, and the fact that the GOP spent years harnessing the fervor of voters who support Republican lawmakers based on their opposition to abortion, some politicians have no reason to avoid punitive or even extreme policies beyond their own convictions about abortion.
All of this creates an opening for policies that once seemed unthinkable to get a serious hearing in some conservative states. Self-proclaimed abortion abolitionists – some of whom have been linked to the clinic blockades and anti-abortion lawbreaking of past decades – once seemed to be fringe players, with their calls to treat abortion as murder. But that is no longer the case today.
Prominent figures in the movement are now embracing the same hardline approach, and some state lawmakers have pushed forward bills that would prosecute those who seek out abortion, while well-known GOP candidates have, on occasion, campaigned against exceptions to safeguard the lives of pregnant people.
There is no reason to think this question will go away. Larger anti-abortion groups have for many years insisted that no women should be punished for seeking abortions, and some state laws, like one in place in Texas, target anyone who either performs an abortion or “aids and abets” the procedure – rather than the person who sought one out. But the spread of self-managed abortion will complicate this issue considerably in conservative states.
With abortion pills more readily available, there will certainly be cases where people manage their own abortions, with help only from doctors from other countries. And if states intent on punitive measures won’t be able to extradite doctors from other countries or states that view abortion as a human right, they could instead turn to punishing those who have abortions. Grave legal consequences for pregnant people are not hard to imagine; even with Roe in place, people have been prosecuted for their abortions and miscarriages.
It’s also worth noting that the government’s ability to spy on its citizens is vastly more sophisticated than it was in 1973. We leave behind data when we use apps, use Google and other browsers and buy things online. There is a largely unregulated market where this data is bought and sold. Armed with this data, states have new powerful tools to invade the privacy of anyone of reproductive age, not just those seeking abortions.
If the world of abortion has changed since 1973, our democracy has too. And the Supreme Court’s willingness to overturn Roe has wide-reaching implications.
The Supreme Court, which once seemed reluctant to issue decisions that too blatantly undercut popular opinion, now appears willing to court controversy and declare its indifference to what Americans think. Not surprisingly, according to the latest Gallup poll, only 25% of Americans have confidence in the Supreme Court.
The war on abortion has contributed to this democratic decline. In seeking to reverse Roe, leaders of the anti-abortion movement fought to change the rules of campaign finance and to rejigger the balance of power in the Republican Party. Anti-abortion advocates worked to focus ordinary Republican voters on control of the Supreme Court and helped to overhaul how judges were chosen – backing those who were more polarizing and therefore more likely to vote to undo abortion rights.
The result is a court that is not only more conservative but far more willing to upend established precedent – a counter-majoritarian court with nothing to check it.
If there was a post-Roe backlash on the right, will progressives now mount a powerful response of their own? It is certainly possible, but Roe alone did not set off the political reaction we have seen against abortion. We are at this moment not just because of the weakness of the Roe decision itself, but also because of strategic decisions by social movements, politicians and ordinary Americans.
The Supreme Court has decided on the fate of Roe v. Wade, at least for now. As for what happens next, that is up to the rest of us.