WashU Experts: Supreme Court decision will transform American life, politics

On Friday, the Supreme Court overturned Roe v. Wade in a decision that echoed the leaked draft published by Politico in early May. The decision will result in severely restricted or total bans on the procedure in nearly half of the country.  

Below, experts from Washington University in St. Louis offer their perspectives on the decision and its impact on American people and politics.

Susan Appleton, the Lemma Barkeloo & Phoebe Couzins Professor of Law in the School of Law, a nationally known expert in family law and feminist legal theory, offered the following legal analysis of the Supreme Court’s decision:

“Although the leaked draft left little room for surprise, I had hoped that the final opinion in Dobbs v. Jackson Women’s Health Organization  would omit the rejection of the argument based on the Equal Protection Clause — perhaps leaving that issue open. That argument does not engage with the right to privacy, which has long generated controversy, or other aspects of Roe v. Wade, as written, but instead contends that abortion restrictions discriminate on the basis of sex, rest on unconstitutional gender stereotypes, and cause harm to the very individual laws like Mississippi’s 15-week abortion ban purport to protect.

“The majority sees no problem in the fact that anti-abortion laws single out pregnant persons —almost always women — as compulsory Samaritans at the expense of their body autonomy and, too often, their lives, as we know from distressing data on high and racially disproportionate maternal mortality rates. In the same vein, the majority gives short shrift to women’s ‘reliance interests’ in the availability of legal abortion, when needed, although of course abortion has long been inaccessible as a practical matter for many.

“The majority’s touchstone is the constitutional text at the time of the framers. Of course, the framers did not see women as full and equal citizens. These aspects of the final opinion send ominous signs for the future of gender equality, given the considerable role that the court has played in rooting out laws that discriminate on the basis of sex,” Appleton said.

“The opinion returns the authority to regulate abortion to ‘the people and their elected representatives.’ It seems to imagine a single and simple post-Roe scenario: abortion will be decided in the ‘laboratory of the states,’ with some states enacting tight restrictions and others taking a more permissive approach. We have evidence, however, of a more complicated and chaotic outcome.

“Instead of the oft-cited ‘patchwork’ of state laws with the ‘patches’ bounded by clearly defined state lines, a tangled mess is likely to emerge — as Justice Breyer’s dissent anticipates. Already, anti-abortion legislators have sought to reach beyond their states’ borders to target abortions their residents might obtain where they are legal. In response, legislators seeking to protect abortion access for traveling patients are exploring ways to insulate local providers and facilities from extraterritorial intrusions.

“The resulting jurisdictional competition, conflicting laws, and dueling court proceedings threaten our federal system. Although many different provisions of the U.S. Constitution might help determine the outer limits of what each state can do, experts agree that the issues remain unsettled and foresee years of litigation ultimately destined for the Supreme Court, litigation that will present questions every bit as vexing as Roe itself.

“I take little comfort in Justice Kavanagh’s attempt to preempt such questions in his concurrence by invoking the constitutional right to travel,” Appleton said.

In some ways — like income inequality and the cost of child care — the United States is in a worse situation than when Roe v. Wade was originally decided, says Zakiya Luna, associate professor of sociology in Arts & Sciences.

From a movement perspective, though, there have been many positive changes, Luna said. These changes include the increasing leadership of young people around issues of abortion and broader recognition of the need for reproductive justice — the right to not have children, to have children and to raise children in safe environments. 

A recent Gallup poll found 55% of Americans now consider themselves to be “pro-choice,” the highest level in decades. Experts believe that the leaked opinion in Dobbs v. Jackson might have pushed some people who previously felt ambivalent about abortion to now identify as “pro-choice.” For these new supporters, Luna offers the following advice:

“My main advice is first to support the grassroots organizations that have already been focusing on abortion work for decades. They have been anticipating a ‘post-Roe’ future for years and already have networks in place to support people whose abortion access has been cut off overnight,” said Luna,  author of “Reproductive Rights as Human Rights: Women of Color and the Fight for Reproductive Justice.” 

“Many are abortion funds that are led by people most affected by the issues: people of color and from low-income backgrounds. From California to Washington D.C., abortion funds have been supporting their callers with everything from rides to appointments, to money for procedures. Some are even able to provide support for parents with things like child care and baby formula.  

“Trust in (young) women of color to lead and innovate in a changing landscape,” Luna said.

Read more about Luna’s perspective on reproductive justice movement.  

“With today’s Supreme Court decision and 21 states poised to outlaw abortion immediately, the rights of women to a full and equal footing with men — politically, socially, economically — have been profoundly undermined. This is no exaggeration, whatever one’s feelings about abortion, said Marie Griffith, director of the John C. Danforth Center on Religion and Politics at WashU.

Griffith is author of “Moral Combat: How Sex Divided American Christians and Fractured American Politics” and “Making the World Over: Confronting Racism, Misogyny, and Xenophobia in U.S. History.” She has long advocated for an end to extreme, uncompromising rhetoric and solutions that honor both the sanctity of life and a woman’s right to choose.

“We know that many Americans hold more nuanced views than the terms ‘pro-life’ and ‘pro-choice’ can easily convey. Yet what hopes there once were for compromise have long felt hopelessly naive, with the all-or-nothing positions that have dominated our national debate.

“Whether the Dobbs decision ultimately, perhaps paradoxically, opens the way to such compromise in some states remains to be seen; at the moment, there is little reason to be anything but pessimistic,” she said.

Massive protests are expected in response to today’s Supreme Court’s decision overturning Roe v. Wade. The decades-long fight over legal abortion rights is far from over. A next logical question is how this landmark decision will impact the outcome of the 2022 congressional elections.

One may assume that the court’s decision will give a boost to Democrats given the fact that a solid majority of Americans (61%) say abortion should be legal in all or most cases. However, researchers at Washington University in St. Louis found that the leaked draft decision did not change the minds of voters about the importance of the abortion issue. Read more about the study here.

The findings led researchers Raphael Thomadsen and Song Yao at WashU’s Olin Business School and Robert Zeithammer at UCLA’s Anderson School of Management to conclude that Democrats need to better frame the abortion issue in order to attract new supporters and motivate their base ahead of elections.

“What would really change the abortion debate, however, is that Americans, as a whole, are strongly against abortion prohibitions in the case of rape, incest or to save the health of a mother. Even many Republicans would prefer abortion being legal for a short amount of time — we tested 12 weeks — to having no exceptions made to the law.”

Democrats, they estimate, could increase their net electoral advantage by 6% simply by framing the debate over Republican-enacted laws around this issue. Including men in their messaging is also important.