The Road to Dobbs - The American Spectator | USA News and Politics
The Road to Dobbs

It was an “opinion day” like no other in recent judicial memory. June 24, 2022. Threats of violence had prompted erection of barricades outside of the Supreme Court building — and not the flimsy bicycle-rack railings used along parade routes but the eight-foot-high Washington-under-siege non-scalable-wall variety. Police in riot gear marched on the building, ready if required to bang heads should the customary shouting and placard-waving deteriorate into fisticuffs.

Why this unprecedented display of power and caution? In a nutshell: the fifty-year legacy of legalized abortion in the United States was coming to an end, and the Left had mobilized its shock troops to try to subvert the inevitable.

A draft of the decision in Dobbs v. Jackson Women’s Health Organization, the legal vehicle for overturning Roe v. Wade, had been spuriously leaked to the press about seven weeks earlier. This spawned violence against pro-life centers across the nation and threats of planned disruption of Sunday worship services. When certain key justices’ personal information was doxxed, the protests took on dangerously intimate contours. Although in violation of federal and local laws, militants descended with impunity on conservative justices’ homes, trying to browbeat at least one into changing his or her vote. One protester was arrested and charged with attempted murder of a justice — he intended to sneak into Justice Brett Kavanaugh’s home and turn the 5–4 majority vote into a 4–4 status quo ante with one heinous act. (And they say conservatives are a threat to democracy!)

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The intimidation didn’t work, for Dobbs came down exactly as adumbrated in the draft decision. The vote was 5–4, with Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Amy Coney Barrett, and Kavanaugh in the affirmative, and Chief Justice John Roberts agreeing narrowly that the statute in question should be upheld but disagreeing with the larger overhaul of Roe.

Dobbs is a case from Mississippi, in which a state law that banned virtually all abortions after fifteen weeks of pregnancy was challenged on behalf of the Jackson Women’s Health Organization, the only abortion clinic in the state. Enforcement of the law was blocked by lower courts, on the basis of Planned Parenthood v. Casey, a 1992 ruling that capped the time at which abortion could be outlawed at fetal viability, generally understood to occur at around twenty-four weeks.

The SCOTUS decision reverses the lower courts and upholds the Mississippi law. In doing so, it effectively makes it legal for states to ban abortion before viability. Moreover, acting on the plaintiff’s request to overturn Roe outright, the five majority justices went beyond the particulars of the Mississippi case and threw out the 1973 law as well. Whether abortions are permitted is now thrown back to the fifty states to determine. Twenty-six of them, according to some sources, had already indicated, some through “trigger laws” — legislation drafted to go into effect if and when Roe and Casey were overturned — that they would ban or severely restrict abortions.

Alito, in his majority opinion, put it bluntly: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

Roe has always been considered constitutionally suspect, even by some scholars sympathetic to abortion. The majority opinion in Roe, written by Justice Harry Blackmun, found that, even though the right to an abortion is not enumerated in the Constitution, the “right of privacy” could be found in a number of constitutional amendments, and this right included the right to abortion. The Casey court grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s due process clause.

While some rights not mentioned specifically in the Constitution have been deemed protected by the Fourteenth Amendment, the court has required such rights, Alito wrote, to be “deeply rooted in the Nation’s history.” Not only is abortion not so rooted, but, until the latter half of the twentieth century, abortion enjoyed no support in U.S. law and, indeed, was considered a crime. Summarized Alito: “By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.”

The other objection to overturning Roe, that it is settled law and thus immune from related legal challenges, was equally dismissed. “[S]tare decisis,” Alito wrote, “is not an inexorable command”; he explicitly cited an infamous landmark legal case that was, upon further review, overturned — Plessy v. Ferguson, the 1896 law that legalized racial segregation.

Liberals immediately erupted into geysers of fear that an overturned Roe paved the way for other, similarly controversial reversals, such as undoing the law ordaining same-sex marriage. On this prospect, Alito intoned: “The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

As for the future of legalized abortion, it will be available on a state-by-state basis and will likely continue to play a role in electoral politics. Voters in Kansas, shortly after the ruling, defeated a pro-life referendum, and the midterm election dealt pro-lifers setbacks in a number of states, as voters in Michigan, Kentucky, California, and Vermont enshrined abortion rights in state constitutions. Also, while downplayed as a significant factor by many conservatives in the run-up to the midterms, abortion moved the needle in the Democrat direction in a number of races. 


Roe’s reversal comes after nearly fifty years of dogged advocacy for life. The ruling has since its inception been deemed a moral outrage by a large percentage of Americans, many of whom, since day one, have been roused into seeking its eradication. They have year after year marched by the millions in the March for Life in Washington, D.C., calling for the law’s overthrow. They have gathered outside abortion clinics both seeking friendly, persuasive interactions with pregnant women and also, for a period in the 1980s, seeking to blockade entrances via Operation Rescue. Many suffered imprisonment for their courage.

They have seen their cause rise and fall. The 1990s, for example, were dismal years, as abortion advocates were able to cast the argument in terms of a woman’s choice and gain traction in opinion polls, some skewing 2–1 in favor of abortion. Politicians who had mortgaged their political success to the abortion lobby delivered upon election in a big way. At one point in the nineties, the country hosted more than two thousand free-standing abortion clinics, which performed 1.6 million abortions a year. Planned Parenthood received government handouts in the millions of dollars.

Such huge numbers induced blowback, however, as public sentiment toward abortion began to turn. Younger Americans, of all races, saw what the extinction of fetal life was doing to their generations.

Baby on scale, illustrating piece on Dobbs (Bill Wilson/

But also, possibly more significantly, advances in ultrasound technology allowed pregnant women to see, beginning at eight weeks, organs developing and a little heart beating inside themselves. Imagine being a young woman whose mother shows you a sonogram of yourself at four months! The Left found it hard to argue with that. Indeed, a Doritos commercial that ran during the 2016 Super Bowl, in which a baby in the womb, shown via ultrasound, is lunging and squirming, trying to get at his father’s bag of chips, generated criticism from NARAL Pro-Choice America for “humanizing” a fetus.

But, although consciences were troubled and national sentiment was shifting in the pro-life direction, Roe still was intractably enshrined as the law of the land, and the political environment, much less the makeup of the court, caused even optimistic pro-lifers to doubt whether they would see the overthrow of the hated ruling in their lifetimes.

The nearly incredible journey of transforming an often-waffling 5–4 conservative majority into a court with the moral sand to overturn a ruling that had been elevated to sacramental status in secular doctrine started in 2005. In that year, swing justice Sandra Day O’Connor retired from the Supreme Court, and President George W. Bush’s nominee to replace her, Harriet Miers, withdrew her candidacy under pressure from pro-life Republicans because she had no track record of publicly opposing abortion. As her replacement, Bush nominated Alito, now one of the staunchest conservatives on the bench, who wrote the Dobbs majority opinion.

Roe’s reversal comes after nearly fifty years of dogged advocacy for life.

After two liberal justices retired and were replaced by two even more liberal justices (Sonia Sotomayor and Elena Kagan), the unexpected death of Antonin Scalia in February 2016 looked to give President Barack Obama a third Supreme Court nomination and the opportunity to flip the court to 5–4 liberal. Senate majority leader Mitch McConnell, however, declared that the Senate would not fill Scalia’s seat during a presidential election year but would allow the next commander in chief to do so, even though that would push the event nearly a year into the future. The Left exploded with outrage, but McConnell held his ground. This deprived Obama’s pick for the vacant seat, Merrick Garland, from even getting a hearing.

Then, unbelievably, Donald Trump won the presidency. In short order, Trump, who had promised in his campaign to nominate conservative justices, put forth the name of Neil Gorsuch, a solid pro-lifer, whose nomination the Democrats threatened to filibuster. But because the then majority leader Harry Reid had back in 2013 invoked the “nuclear option” — upending the filibuster for lower-court judges — the path was cleared for McConnell to follow suit for Supreme Court nominations, and Gorsuch got in, 54–45. 

Then Anthony Kennedy, the swingiest of swing justices, retired in 2018, and Trump got his second SCOTUS nominee. Amid contention that surpassed anything in recent years, including allegations harking back to behavior at high school drinking parties, Brett Kavanaugh was confirmed, 50–48. The 5–4 majority was solidified, with Roberts assuming the swing position. 

Then stalwart liberal Ruth Bader Ginsburg, one of abortion’s champions, passed away in September 2020, after years of feeble health. Trump was handed his third Supreme Court nomination. Ignoring liberal caterwauling over “rushing” through the nomination so close to a presidential election, McConnell — in a glorious volte-face — got University of Notre Dame law professor Amy Coney Barrett confirmed, 52–48, one week before the election. The 5–4 majority went to 6–3, and how Roberts voted no longer mattered.

Then, in May 2021, the Supreme Court granted cert to Dobbs.

Then, on June 24, 2022, Roberts’s defection notwithstanding, the three new justices, plus Alito and Thomas, struck down Roe v. Wade. Millions more babies will live as a result.

And it is said God is not involved in politics.

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