The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Dobbs Won't End the Legal Battle Over Abortion
Liberals won't reconcile themselves to Dobbs, any more than conservatives accepted Roe v. Wade and Casey.
In a famous passage in his dissent in Planned Parenthood v. Casey, the 1992 case that (mostly) reaffirmed Roe v. Wade, Justice Antonin Scalia chided the majority for believing "they are bringing to an end a troublesome era in the history of our Nation and of our Court." He predicted—correctly as it turned out—that the Court's ruling would actually "prolong and intensif[y]" conflict over the issue of abortion.
Today, knowledgeable conservatives probably recognize that the reversal of Casey and Roe in Dobbs won't put an end to the political struggle over abortion. At least in the short to medium term, it is likely to actually intensify it. But they may hope it will at least put an end to legal battles over abortion's status under the Constitution. If so, they are likely to be disappointed on that front.
It is obvious that Dobbs is likely to open up legal battles over such issues as whether states can bar residents from getting abortions in other states, and whether the federal government can adopt nationwide abortion bans (or nationwide laws protecting abortion rights). But Dobbs is also unlikely to definitively settle the central question it set out to consider: whether there is a constitutional right to abortion.
Just as most conservatives never accepted the legitimacy of Roe v. Wade, and waged a fifty year struggle to overturn it, so the vast majority of progressives are unlikely to accept Dobbs, and would be happy to reverse it as soon as they get a chance to do so. This is clear both from the left-liberal reaction to Dobbs since it came down, and from the development of the abortion issue over the last several decades, as well. Neither side in this constitutional debate is willing to give much, if any, credence to the legitimacy of the other.
If a future liberal Supreme Court majority reverses Dobbs, conservatives might cite the Dobbs' dissent's paeans to the value of precedent. But liberals could easily respond by citing the conservatives' own willingness to reverse precedent in Dobbs itself. Moreover, the Dobbs dissent does acknowledge that "we are not saying that a decision can never be overruled just because it is terribly wrong." Most progressives no doubt believe that Dobbs is one such "terribly wrong" ruling, perhaps even a paradigmatic example thereof.
It may seem as if a liberal Supreme court majority is a long way off. But it may not be. Dobbs is backed by a 6-3 majority (or possibly only 5-4, if you don't count Chief Justice Roberts, who would have preserved large elements of Roe). A shift of two seats (one if Roberts isn't included) would change the balance of the Court on abortion. Two of the justices in the Dobbs majority—Alito and Thomas—are well into their seventies.
They might try to time their departures from the Court to allow a GOP president to replace them. But vagaries of illness and death don't always allow such timing. Just ask Thurgood Marshall, Antonin Scalia, and Ruth Bader Ginsburg, among others! If Democrats win enough presidential elections over the next 10-15 years (or just win them at the right time), they could well shift the majority on the Court.
A liberal Supreme Court majority could potentially be secured faster than that through court-packing, an idea that has entered the political mainstream in recent years, and may get further momentum on the left, as a result of Dobbs. The political odds are still against it happening. But the possibility can't be ruled out.
If the Democrats reverse Dobbs by packing the Court, I think it will ultimately be self-defeating. Republicans will just respond by packing the Court with their own jurists, the next time they get the chance, and the newly conservative Court would then once again rule against a constitutional right to abortion. Indeed, one of the main reasons why I have consistently opposed both left and right-wing court-packing plans is that the end result is likely to be the destruction of judicial review as an effective check on the power of government. Still, Democrats could potentially try court-packing regardless. It wouldn't be the first time politicians sacrificed long-term institutional values for short-term political gain.
Even aside from court-packing, Dobbs is far from secure against reversal. In trying to get rid of it, liberals are in a stronger position than conservatives were in the wake of Roe v. Wade in 1973. They need only "flip" a 6-3 (or possibly 5-4) majority, as opposed to the 7-2 one that decided Roe. In addition, they have a robust pipeline of high-quality potential nominees who can be depended on to vote the right (or perhaps, really, the "left") way on abortion. By contrast, conservatives in the 1970s and 80s had to cope with a GOP legal establishment that still had a relatively thin bench of pro-life jurists, which contributed to the nomination of several Republican Supreme Court justices (O'Connor, Kennedy, and Souter) who ended up voting to reaffirm Roe.
Stare decisis is an important influence on judicial decision-making. But it is at its weakest when it comes to decisions Supreme Court justices believe are profoundly harmful and wrong. That's what led conservative justices to reverse Roe and Casey. And it could well lead future liberal justices to reverse Dobbs, in turn.
Could anything ever end the legal struggle over abortion? Yes. The fight could end if American society reaches a broad consensus on the issue (similar to that which exists in many European countries, which have rules more restrictive than the Roe regime was, but less so than demanded by US pro-lifers). The 14-week limits that exist in France and Germany are good examples. If US public opinion reaches a similar consensus, few people would care about the details of abortion jurisprudence, so long as it doesn't bar the policies favored by that consensus. Alternatively, legal elites could reach a consensus on constitutional methodology that clearly resolves the abortion issue one way or the other.
But neither voters nor legal elites are likely to develop a broad consensus on this matter anytime soon. Unless and until they do, the struggle over the constitutional status of abortion is likely to continue.
