The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

One Year Later

The sky did not fall after the Supreme Court exited the abortion debate.


Exactly one year ago, the Federalist Society held its National Lawyers Convention. And exactly one year ago, the Supreme Court was enmeshed in the abortion debate on two fronts. First, Jonathan Mitchell, also known as "The Genius," foisted the impermeable fetal heartbeat law on the judiciary. Second, Mississippi's fifteen-week abortion ban was slated for oral argument. At the time, we were warned about the parade of horribles that would fall if the Supreme Court allowed either of these laws to go into effect.

One year later the story looks very different–especially after election day. In Kansas, voters rejected a ballot measure that would have reversed a state supreme court decision that protected abortion. And all the justices who joined that opinion, as well as several other justices appointed by the Democratic governor, were retained. Voters in several states also rejected efforts to scale back abortion rights. In Kentucky, 53% of voters rejected a referendum that would have stated there was no right to abortion under the state constitution. In Montana, 53% of voters rejected a "born alive" amendment to the state constitution. In Michigan, 56% of voters approved a referendum that protects a right to abortion, and wipes out a 1931 law that banned the procedure.

Justice Scalia's clarion call in Casey rings true three decades later:

Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

Justice Breyer should be proud that Dobbs is making democracy work.

As a general matter, I no longer pay attention to predictions that the sky will fall after a conservative Supreme Court victory. The sky did not fall after Heller. The sky did not fall after Citizens United. The sky did not fall after Shelby County. The sky did not fall after Hobby Lobby. The sky did not fall after Rucho. And so on. The sky will not fall after Dobbs.