The Morning Dispatch: The Post-Roe Era Begins

Happy Monday! Anything big happen since we were last in your inbox Friday morning?

Quick Hits: Today’s Top Stories

• Russian forces reportedly gained complete control of the eastern Ukrainian city of Severodonetsk over the weekend, with Ukrainian military officials ordering the country’s remaining forces there to leave. Kyiv was reportedly struck by Russian missiles on Sunday, marking the first attack on the Ukrainian capital in three weeks. 

• President Joe Biden formally signed the Bipartisan Safer Communities Act into law on Saturday, one day after the House voted 234-193 to advance the legislation that will implement stricter background checks for gun purchasers under age 21, provide incentives for states to adopt “red flag” laws, block domestic abusers in dating relationships from owning or buying guns until five years pass without further disqualifying convictions, and appropriate funding for mental health and school safety measures.

• Pfizer and BioNTech released new clinical data over the weekend about two vaccine booster candidates tailored for the Omicron variant that the companies say elicit a “substantially higher” immune response against Omicron BA.1 when compared to their original vaccine. Like Moderna, the companies have begun sharing the data with public health regulators in the hopes of the updated shots receiving authorization ahead of a likely fall wave.

• At a G7 summit in Germany over the weekend, the leaders of France, Germany, Japan, the United Kingdom, Italy, Canada, and the United States announced the Partnership for Global Infrastructure, a five-year, $600 billion push intended to counter China’s Belt and Road Initiative and invest in developing economies across the world. 

• Josep Borrell, the European Union’s top diplomat, told reporters on Saturday that in the coming days, Iran and the United States will restart indirect talks over reviving the 2015 nuclear deal. The discussions—which had stalled this spring, and will be mediated by EU officials—will likely take place in Doha, Qatar, and will begin days after Iranian state media reported the country had launched a rocket into space.

• A federal appeals court on Friday temporarily blocked the Food and Drug Administration from enforcing its recent order prohibiting Juul Labs from selling e-cigarettes and vape cartridges in the United States. The court’s stay will give Juul time to file an emergency motion. 

• The Federal Reserve released the results of its annual stress test on Thursday, finding all of the country’s 34 largest banks have enough capital on hand to withstand a hypothetical “severe global recession” in which the unemployment rate more than doubles and asset prices fall up to 55 percent.

• The Colorado Avalanche defeated the Tampa Bay Lightning 2-1 yesterday to win its first Stanley Cup Championship since 2001, and the University of Mississippi beat the University of Oklahoma 4-2 on Sunday to win its first-ever Men’s College World Series title.

Leaked Draft Opinion Opinion

“We hold that Roe and Casey must be overruled.”

With those nine words, Justice Samuel Alito brought an end to 49 years and five months of pro-life advocacy, organizing, and institution-building—and launched the next chapter of the movement.

That sentence, of course, comes from the Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization, released Friday morning at 10:11 a.m. ET. It shouldn’t have come as too much of a surprise—Politico published a leaked version of the opinion nearly two months ago, and the final draft barely differs from the original. But what the writing lacks in novelty at this point it more than makes up for in significance.

“Roe was egregiously wrong from the start,” Alito concluded, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The opinion, concurrences, and dissents—more than 210 pages in total—laid bare the deep divisions not only within the court, but within the court’s conservative wing. 

In the strictest sense, the question before the court in Dobbs was the constitutionality of Mississippi’s Gestational Age Act, a law enacted by the state’s Republican legislature and governor in 2018 that prohibits a person from performing abortions after 15 weeks of gestation “except in a medical emergency or in the case of a severe fetal abnormality.” The court’s six Republican-appointed justices were united in their belief that the statute should stand, despite its purposeful violation of the point-of-viability and undue-burden frameworks outlined in the 1992 case Planned Parenthood v. Casey.

Chief Justice John Roberts believed the court should stop there and exhibit judicial restraint by reaching the narrowest ruling necessary to dispose of the case. “There is a clear path to deciding this case correctly without overruling Roe all the way down to the studs,” Roberts concluded. “Recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.” 

But Alito—and the court’s other four conservatives—viewed this piecemeal approach as nothing more than a can-kicking exercise, dragging out the inevitable when the court could just rip the Band-Aid off. “The concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide,” Alito wrote in one of the few sections of his opinion added since his first draft was circulated in February. “The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay.”

Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor disagreed, criticizing their colleagues’ interpretation of the court’s stare decisis doctrine that dictates justices should generally adhere to precedent. “[The majority] eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station,” the trio wrote “with sorrow” in their dissent. “It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.”

Their penultimate concern—that eliminating the constitutional right to an abortion could imperil other rights established by the Supreme Court—is not entirely without merit, as we explored in a Morning Dispatch last month. 

Those rights—like the right to have an abortion—are “unenumerated,” meaning they are not explicitly codified in the Constitution but instead inferred by other rights that are. And in establishing all four of them over the past 60 or so years, the Supreme Court relied on both the Due Process Clause of the 14th Amendment and a “right to privacy” that the justices read into the Constitution from the “penumbras”—or shadowy edges—of existing rights. But in overturning Roe, Alito’s draft opinion argues that justification for an unenumerated right to abortion is insufficient, as such a right was not “deeply rooted” in American history and tradition. Neither were the rights to contraception, sodomy, or same-sex marriage. So strictly speaking, because their underlying rationale is mostly the same, the fate of all four should be tethered together. If one falls, the others would theoretically crumble as well.

Thomas—a longtime opponent of the court’s “substantive due process” jurisprudence—used his concurrence to relitigate one of his longtime grievances. “Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion,” he wrote in his concurrence. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sodomy], and Obergefell [same-sex marriage].” After overruling those “erroneous” decisions, Thomas continued, the court could determine whether the rights established in those cases are located elsewhere in the Constitution.

Thomas can dream, but Friday’s opinion demonstrated he’s on an island—there’s little appetite to revisit those cases, even among his fellow conservative justices. “To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote for the majority. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Kavanaugh echoed that sentiment in his concurrence, which—given his status as the court’s swing vote—carried a particular weight. “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents,” he wrote, likely seeking to assuage some concerns from progressives (and head off potential legal challenges from conservatives). He also threw cold water on burgeoning arguments that states could prohibit residents from traveling elsewhere to obtain abortions or retroactively impose punishments for abortions that occurred prior to last week.

Throughout his concurrence, Kavanaugh maintained a laser-like focus on what he sees as the justices’ limited role in answering the profound questions before them. “The issue before this Court … is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion,” he wrote. “The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.”

“Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral,” he continued. “The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.”

The Country Reacts to Dobbs

Hours after the Supreme Court handed down its decision overturning Roe v. Wade Friday, Jennifer Chen was in the crowd packing the streets outside the court to demand the ruling’s reversal, watched over by law enforcement in riot gear.

“This decision cannot stand,” Chen said, calling for sustained street protests. She helped hand out green stickers and bandanas—the color a reference to the pro-abortion access movement in Latin America—and took donations in a small bucket for the group Rise Up 4 Abortion Rights. “Many of us are used to going to a protest, registering our outrage and going home and eating dinner,” Chen told The Dispatch. “That is not going to stand.” Indeed, while some sunburned and hoarse protesters trickled away come evening, others picnicked in the grass outside the Capitol and returned to the Supreme Court to protest until nearly 11 p.m.

Pro-abortion rights protesters took to the streets across the country in the days following Dobbs v. Jackson, waving wire coat hangers, banging on buckets and drums, and, in some cases, holding each other and crying. Pro-life activists also turned out to celebrate the victory—though outside the Supreme Court they were fewer in number, often surrounded and heckled.

The demonstrations largely failed to rise to the “Night of Rage” publicized on posters in Washington, D.C., purportedly distributed by the radical group Jane’s Revenge. After weeks of incendiary rhetoric, attacks on crisis pregnancy centers, and a foiled attempt on Justice Brett Kavanaugh’s life, Planned Parenthood and other pro-abortion groups formally disavowed violence in the name of their cause. Those who use “destruction and violence” do not speak for them or the movement, the groups said in a statement. 

President Joe Biden labeled Friday “a sad day for the Court and for the country” and promised his administration would push to protect access to abortion pills and interstate travel for abortions, but he too sought to lower the temperature. “Keep all protests peaceful. Peaceful, peaceful, peaceful,” he said this weekend. “No intimidation. Violence is never acceptable. Threats and intimidation are not speech.”

But law enforcement and protesters did clash in some areas, such as Phoenix, Arizona, where police tear gassed demonstrators who officials said were banging on the windows of the state Senate building and trying to break in. Law enforcement officials arrested six people associated with a protest in Greenville, South Carolina, and Eugene, Oregon, police said protesters there threw smoke bombs at officers. The Vermont state house, as well as pregnancy centers in Colorado and Virginia, were vandalized.

Friday’s opinion set in motion legislative changes in states across the country, 13 of which had “trigger laws” on the books imposing various new abortion restrictions either immediately, or within the next few weeks. Such switches have already been flipped in Utah, Arkansas, and Ohio, for example, and other red states are likely to follow suit. Virginia’s GOP Gov. Glenn Youngkin announced Friday he plans to push a law banning most abortions after 15 weeks of pregnancy with exceptions for rape, incest, and life of the mother, and Pete Ricketts, the Republican governor of Nebraska, said last month he’d call a special session of the state legislature to pass an abortion ban if Roe fell.

These are the debates pro-life activists have long hoped to have. “The injustice of Roe has finally come to an end, and the momentum to protect life in law is finally on the side of innocent preborn children and their mothers who deserve our help,” said Kristan Hawkins, president of Students for Life. “Now we get back to building up a health[y] society, affirming life for women and their children, born and preborn.”

Those in favor of abortion access rushed to lock in as much of the status quo as possible. Protesters outside the Supreme Court held signs with URLs where passersby could donate to abortion funds, handed out small white boxes with information about accessing abortion pills, and called on Congress—with its razor-thin Democratic majority—to pass a federal law guaranteeing abortion access nationwide. 

On the state level, Washington’s Democratic Gov. Jay Inslee promised $1 million in extra funding for the state’s abortion providers to cope with any influx of out-of-state patients, and companies including Amazon, Disney,  and Starbucks have promised to cover employees’ travel expenses for abortions. An abortion clinic in North Dakota—a state that has a “trigger law” that will kick into gear next month—has raised about $600,000 to move across the border to Minnesota and continue operations. In Utah on Saturday, Planned Parenthood sued to block the state’s law criminalizing abortion.

The decision also predictably renewed Democratic calls to radically alter the structure of the Supreme Court. Jamie Harrison, chair of the Democratic National Committee, dismissed the body as “illegitimate” and “filled with political extremists”—inciting similar chants from protesters outside the court over the weekend. House Speaker Nancy Pelosi described the opinion as a “miscarriage of justice.”

Massachusetts Sen. Elizabeth Warren outlined an implausible plan to expand Democrats’ Senate majority, eliminate the body’s legislative filibuster, add additional justices to the Supreme Court, and codify the protections established in Roe and Casey into law. 

Biden is on board with some of these pushes, but not all. “If Americans are able to use their voice at the ballot box, bring in more members into Congress that support this issue, then there is … a way that we can restore Roe,” White House press secretary Karine Jean-Pierre told reporters on Saturday. “[But] expanding the Court, that is something that the president does not agree with.”

Congressional Democrats reiterated many of Warren’s calls over the weekend, particularly the push for a federal law, which Pelosi promised her conference will “keep fighting ferociously” to pass. Even moderate West Virginia Sen. Joe Manchin—a frequent thorn in the side of Democratic leaders this Congress—announced his support for such legislation. But such a push failed earlier this spring: For a bill to have a snowball’s chance in hell of passing, Manchin and a handful of other Senate Democrats would need to reverse their stance on nuking the legislative filibuster.

Some Republicans are also eyeing federal legislation in the newfound post-Roe world—a handful of House GOPers are weighing the merits of a nationwide 15-week ban, for example—but other lawmakers expressed wariness about a top-down approach. 

“This issue will now be debated in the 50 states, and a 330,000,000-person, continental nation will work through this debate in a way that’s healthier than Roe’s one-size-fits-all, Washington-centrism,” Nebraska Sen. Ben Sasse said after the decision on Friday, crediting the Supreme Court justices for not faltering in the face of violent threats and intimidation. “The pro-life movement is pro-baby, pro-mom, and pro-science. This cause is rooted in love and now is the time to show it. We can’t call this legal victory the end, because our movement has never been primarily about lawsuits and laws—it’s about love and compassion. So let’s celebrate today’s victory and get to work. Let’s support and love all pregnant women. Let’s come alongside them and give the support they need. Let’s support babies regardless of the situations they face and build communities around them that will love and cherish them.”

Worth Your Time

• The pro-life movement’s decades long push to overturn Roe succeeded. Now what? In his latest New York Times column, Ross Douthat maps out what the next few decades could look like. “You can imagine a future in which anti-abortion laws are permanently linked to a punitive and stingy politics, in which women in difficulties can face police scrutiny for a suspicious miscarriage but receive little in the way of prenatal guidance or postnatal support,” he writes. “In that world, serious abortion restrictions would be sustainable in the most conservative parts of the country, but probably nowhere else, and the long-term prospects for national abortion rights legislation would be bright. But there are other possible futures. The pro-life impulse could control and improve conservative governance rather than being undermined by it, making the G.O.P. more serious about family policy and public health. Well-governed conservative states like Utah could model new approaches to family policy; states in the Deep South could be prodded into more generous policy by pro-life activists; big red states like Texas could remain magnets for internal migration even with restrictive abortion laws.”

• After countless mass shootings and years of ignoring pleas from gun-control advocates, a bipartisan group of Senate negotiators successfully ground out a series of gun reforms through a combination of experience and political courage, the Washington Post’s Mike DeBonis writes in this recounting. “Sen. John Cornyn had just left a convention center stage in Houston, where he had been mercilessly booed by conservative activists furious at his leading role in the most serious gun-law talks on Capitol Hill in a generation, when the Texas Republican picked up his phone and sent a message,” Debonis notes. “The day before, Cornyn had stormed out of a key bargaining session inside the Capitol, telling reporters, ‘I’m done.’ … But Cornyn made clear in that text message to Sen. Kyrsten Sinema (D-Ariz.) that there was nothing to worry about: ‘We both know that when we’re doing what’s right, it doesn’t matter what other people think,’ he wrote, according to Sinema.”

Something Incredible

Presented Without Comment

Also Also Presented Without Comment

Toeing the Company Line

• You knew the Dobbs decision was going to be emergency-pod worthy. In a special Friday episode of Advisory Opinions, Sarah and David break down the Supreme Court’s earth-shattering opinion. Are Griswold and Obergefell now on the chopping block? How effective was the Democratic-appointed justices’ dissent? Was Chief Justice John Roberts able to thread the needle? In their regularly scheduled Friday episode, they explained the other major ruling handed down last week—which struck down a New York law limiting guns outside the home.

• In Friday’s Uphill (🔒), Haley dives into the most significant gun legislation to pass Congress in years, and a separate gun violence bill that failed in the House. Plus: the final installment of her opus on the Uyghur Forced Labor Prevention Act. And if reading 21,000 words just isn’t in the cards for you, the story is now available in podcast form!

• Last week’s Stirewaltisms (🔒) focuses on Democratic efforts to support election deniers in Republican primaries. “Boosting extremists may seem shrewd to some Democrats, but it runs counter to the work of the January 6 committee and the activists like [LinkedIn founder Reid] Hoffman who are trying to prevent a potential constitutional calamity in 2024,” Chris writes.

• No, the January 6 Committee hearings are not show trials. “We spent decades arguing that Soviet crimes were at least in the same moral ballpark as Nazi crimes,” Jonah writes in Friday’s G-File. “Now, for many conservatives, the central crimes of Stalinism amount to a toothless committee because it’s not bipartisan enough.”

• David’s been working toward and advocating for the overturning of Roe and Casey his entire career. Now that the moment is finally here, he worries the pro-life community isn’t ready for what’s next. “The commitment to life carries with it a commitment to love, to care for the most vulnerable members of society, both mother and child,” he writes in Sunday’s French Press. “But life and love are countercultural on too many parts of the right. In a time of hate and death, too many members of pro-life America are contributing to both phenomena.”

Let Us Know

Based on the excerpts from the opinion, concurrences, and dissent highlighted above, with which justice (or justices) are you most ideologically aligned on the legal questions surrounding abortion?