On the likely overturning of Roe v. Wade

See updates through December 18, 2021, at end of post.


It is possible that a whole bunch of people misinterpret yesterday’s arguments at the U.S. Supreme Court on a Mississippi law that would ban abortion at 15 weeks of pregnancy but it very much appears we are arriving at a point I never imagined we would arrive at:[1] The overturning of Roe v. Wade.[2]

Mary Ziegler notes that in the arguments, “Samuel Alito took a more historical approach, hinting that there can be no right to abortion, because at the time the relevant part of the Constitution was written, many states had already made abortion a crime.”[3]

I understand the Constitution differently, it seems, from how the Supreme Court did in handing down Roe. I infer a right of privacy and indeed to personal autonomy—I think straightforwardly—from the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[4]

Privacy follows from a right to be secure in houses, papers, and effects. Personal autonomy follows from a right to be secure in persons. But the Supreme Court chose, to my eye, a more circuitous route:

The constitutional right to privacy comes from the Due Process Clause of the Fourteenth Amendment. The Due Process Clause does not explicitly state that Americans have a right to privacy. However, the Supreme Court has recognized such a right going all the way back to 1891. Just one year before Roe, the Supreme Court held that “in a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” In Roe v. Wade, the Court decided that this right to privacy extends to a woman’s control over a pregnancy.[5]

The Fourteenth Amendment[6] was adopted in the immediate post-Civil War era. It was meant to protect Black men, who were also accorded the vote[7] and freed from slavery.[8] It is to this era I refer in a post explaining who social conservatives think is “innocent” and by what means humans cease to be “innocent.” In sum, humans are seen as innocent until they pass literally or symbolically (as with a Cesarean birth) through the birth canal—a woman’s vagina—which is to assess birth as a act of sin on par with sexual intercourse but applicable even to women (of course) and virgins. And to make it all painfully explicit: Unborn life is “innocent.” Born life is not.[9] It should go without saying that this linkage to female-specific anatomy associated with both pleasure and sin involves misogyny on a scale beyond comprehension.

The history that Alito alludes to[10] is certainly no better. Before this time, the Reconstruction Era and the cusp of the Industrial Revolution, abortion was available through a convenient ruse: It would be the woman herself who reported “quickening,” that is, fetal movement, after which an abortion would be illegal. But having felt no such thing, or at least claiming to have felt no such thing, a woman could receive treatment for a “missed period,” which just happened to be the exact same treatment as an abortion.[11]

It was only about this same time that waves of immigration, one early in the 19th century, consisting largely of light-skinned Protestants who were often native speakers of English, and another beginning late in the same century, in which darker-skinned Catholics, who were not so often native speakers of English, arrived,[12] that fertility declined among middle and upper class white women generally,[13] that “race suicide” hysteria increased,[14] that evangelical Protestantism as we would recognize it today arose,[15] and that abortion really became an issue.[16] Which is all to say, that as George Lakoff explained, women are essentialized as their reproductive capacity[17] and, we must inescapably surmise, at least in part, in order to preserve (wealthy) Protestant white male hegemony.

It is a horrifying history. Women were simply chattel. Upon the deaths of their husbands, wives would be lucky if their sons, the heirs, allowed them an upstairs room to live out the rest of their days. They had no rights.[18]


Fig. 1. Map via the Washington Post in a newsletter, December 2, 2021, fair use.[19]

I don’t care that, even as a woman, Amy Coney Barrett will likely be among the justices to vote to overturn Roe.[20] When Alito takes a “historical approach,”[21] I only see straight through to a horrific misogyny that has outlasted slavery.


Update, December 7, 2021: Barton Gellman’s article in the Atlantic is terrifying. It aligns perfectly with what I see around southwestern Pennsylvania. Donald Trump’s supporters are armed, dangerous, and committed; they exist in a burgeoning and unstoppable gun nuttery movement that has merged with a anti-abortion movement as part of an apparent merger of authoritarian populism, paleoconservatism, and social conservatism;[22] their participation in the militia movement is only barely the tip of the iceberg.[23]

Gellman pulls together a lot of strands showing how Trump’s supporters are increasingly well prepared to seize power, whether or not they actually win the election in 2024,[24] in a way that aligns with my own dire anticipation that this country is becoming an evangelical white nationalist country,[25] with only rhetorical opposition in a divided but functionally acquiescent Democratic Party that fails to earn people’s votes.[26]


Update, December 10, 2021: The Texas law banning abortion at six weeks, whose makers attempted to evade legal challenge by putting enforcement in the hands of private citizens, now even more looks doomed[27] but there’s still little reason to doubt and, indeed, I think the subtext of permitting challenges but allowing the Texas law to remain in effect[28] is that the Supreme Court will overturn or at least severely constrain Roe v. Wade in the Mississippi case.[29]


Update, December 18, 2021: The Supreme Court is slow-walking the Texas case[30] in which I think they will ultimately strike down the Texas law because, as Brett Kavanaugh pointed out, allowing its novel approach to enforcement against abortion would enable, for example, California to do the same thing with guns,[31] which is precisely what the latter state’s governor has indicated he intends to do.[32] I’m convinced they’re just waiting to overturn or severely curtail Roe v. Wade with the Mississippi case,[33] before striking down Texas’ enforcement mechanism. In the meantime, the Texas law serves their purpose, so they let it stand while letting challenges work their way through lower courts.[34]

  1. [1]Readers of yesterday’s blog post will notice an inconsistency: There I said I found Margaret Atwood’s The Handmaid’s Tale (New York: Anchor, 1998) plausible. How, one might entirely reasonably ask, could I find Atwood’s novel plausible yet fail to foresee the overturning of Roe v. Wade? I plead guilty as charged. David Benfell, “How Margaret Atwood’s The Handmaid’s Tale moves from fiction to fact,” Not Housebroken, December 1, 2021, https://disunitedstates.org/2021/12/01/how-margaret-atwoods-the-handmaids-tale-moves-from-fiction-to-fact/
  2. [2]Irin Carmon, “This Is How Roe Ends,” New York, December 1, 2021, https://nymag.com/intelligencer/2021/12/supreme-court-looks-likely-to-kill-roe-in-mississippi-case.html; Ed Kilgore, “Is Roe v. Wade Now Doomed?” New York, May 17, 2021, https://nymag.com/intelligencer/2021/05/is-roe-v-wade-now-doomed.html; Adam Liptak, “Mississippi asks the Supreme Court to overrule Roe v. Wade,” New York Times, July 22, 2021, https://www.nytimes.com/2021/07/22/us/politics/mississippi-supreme-court-abortion.html; Ruth Marcus, “The Rule of Six: A newly radicalized Supreme Court is poised to reshape the nation,” Washington Post, November 28, 2021, https://www.washingtonpost.com/opinions/2021/11/28/supreme-court-decisions-abortion-guns-religious-freedom-loom/; Ruth Marcus, “The question is not whether ‘Roe v. Wade’ is overturned — but how,” Washington Post, December 1, 2021, https://www.washingtonpost.com/opinions/2021/12/01/supreme-court-ponders-how-to-overturn-roe/; Amber Phillips, “4 takeaways from the Supreme Court arguments on abortion,” Washington Post, December 1, 2021, https://www.washingtonpost.com/politics/2021/12/01/takeaways-scotus-mississippi-abortion/; Nia Prater, “Supreme Court to Hear Case That Threatens Roe v. Wade,” New York, May 17, 2021, https://nymag.com/intelligencer/2021/05/supreme-court-to-hear-case-that-threatens-roe-v-wade.html; Daniela Santamariña, “What abortion policy would look like in the U.S. if Roe v. Wade fell,” Washington Post, September 2, 2021, https://www.washingtonpost.com/politics/2021/06/11/abortion-rights-roe-v-wade/; David G. Savage, “Supreme Court agrees to hear major abortion case challenging Roe vs. Wade,” Los Angeles Times, May 17, 2021, https://www.latimes.com/politics/story/2021-05-17/supreme-court-agrees-to-hear-abortion-case; David G. Savage, “Supreme Court justices sound ready to restrict the right to abortion,” Los Angeles Times, December 1, 2021, https://www.latimes.com/politics/story/2021-12-01/supreme-court-weighs-future-of-abortion-rights-and-roe-vs-wade; Felicia Sonmez, “Sen. Collins repeatedly asserted that Kavanaugh considered abortion rights settled law. The justice’s decision on Texas’s restrictive law suggests otherwise,” Washington Post, September 2, 2021, https://www.washingtonpost.com/powerpost/abortion-collins-supreme-court-kavanaugh/2021/09/02/b6de0b98-0bfa-11ec-a6dd-296ba7fb2dce_story.html; Amy Davidson Sorkin, “The Supreme Court Looks Ready to Overturn Roe,” New Yorker, December 2, 2021, https://www.newyorker.com/news/daily-comment/the-supreme-court-looks-ready-to-overturn-roe; Ariane de Vogue, “Mississippi asks US Supreme Court to overturn Roe v. Wade,” CNN, July 22, 2021, https://www.cnn.com/2021/07/22/politics/mississippi-roe-v-wade-abortion/index.html; Paul Waldman, “At the Supreme Court, the bell tolls for Roe v. Wade,” Washington Post, December 1, 2021, https://www.washingtonpost.com/opinions/2021/12/01/bell-tolls-for-roe/; Mary Ziegler, “The End of Roe,” Atlantic, December 1, 2021, https://www.theatlantic.com/ideas/archive/2021/12/abortion-abortion-oral-argument-supreme-court/620874/
  3. [3]Mary Ziegler, “The End of Roe,” Atlantic, December 1, 2021, https://www.theatlantic.com/ideas/archive/2021/12/abortion-abortion-oral-argument-supreme-court/620874/
  4. [4]U.S. Const., amend. IV.
  5. [5]Laura Temme, “Roe v. Wade Case Summary: What You Need to Know,” Findlaw, September 21, 2021, https://supreme.findlaw.com/supreme-court-insights/roe-v–wade-case-summary–what-you-need-to-know.html
  6. [6]U.S. Const., amend. XIV.
  7. [7]U.S. Const., amend. XV.
  8. [8]U.S. Const., amend. XIII.
  9. [9]David Benfell, “The connection between ‘original sin,’ misogyny, and white supremacism,” Not Housebroken, November 25, 2018, https://disunitedstates.org/2018/11/25/the-connection-between-original-sin-misogyny-and-white-supremacism/
  10. [10]Mary Ziegler, “The End of Roe,” Atlantic, December 1, 2021, https://www.theatlantic.com/ideas/archive/2021/12/abortion-abortion-oral-argument-supreme-court/620874/
  11. [11]Linda K. Kerber and Jane Sherron De Hart, eds., Women’s America: Refocusing the Past, 6th ed. (New York: Oxford, 2004).
  12. [12]Paul S. Boyer et al., The Enduring Vision, 8th ed. (Wadsworth, Cengage Learning, 2014).
  13. [13] Deborah L. Rhode, “Adolescent Pregnancy and Public Policy,” Political Science Quarterly 108, no. 4 (1993): 635-669
  14. [14]Marjorie Heins, Not in front of the children: ‘Indecency,’ censorship, and the innocence of youth (New Brunswick, NJ: Rutgers University, 2007); Deborah L. Rhode, “Adolescent Pregnancy and Public Policy,” Political Science Quarterly 108, no. 4 (1993): 635-669
  15. [15]Deborah L. Rhode, “Adolescent Pregnancy and Public Policy,” Political Science Quarterly 108, no. 4 (1993): 635-669
  16. [16]Linda K. Kerber and Jane Sherron De Hart, eds., Women’s America: Refocusing the Past, 6th ed. (New York: Oxford, 2004).
  17. [17]George Lakoff, Moral Politics, 2nd ed. (Chicago: University of Chicago, 2002).
  18. [18]Linda K. Kerber and Jane Sherron De Hart, eds., Women’s America: Refocusing the Past, 6th ed. (New York: Oxford, 2004).
  19. [19]Rachel Roubein, “Biden says he’ll battle omicron with testing and boosters,” Washington Post, December 2, 2021, https://www.washingtonpost.com/politics/2021/12/02/biden-says-he-battle-omicron-with-testing-boosters/
  20. [20]Ruth Marcus, “The question is not whether ‘Roe v. Wade’ is overturned — but how,” Washington Post, December 1, 2021, https://www.washingtonpost.com/opinions/2021/12/01/supreme-court-ponders-how-to-overturn-roe/; Amber Phillips, “4 takeaways from the Supreme Court arguments on abortion,” Washington Post, December 1, 2021, https://www.washingtonpost.com/politics/2021/12/01/takeaways-scotus-mississippi-abortion/; David G. Savage, “Supreme Court justices sound ready to restrict the right to abortion,” Los Angeles Times, December 1, 2021, https://www.latimes.com/politics/story/2021-12-01/supreme-court-weighs-future-of-abortion-rights-and-roe-vs-wade; Paul Waldman, “At the Supreme Court, the bell tolls for Roe v. Wade,” Washington Post, December 1, 2021, https://www.washingtonpost.com/opinions/2021/12/01/bell-tolls-for-roe/; Mary Ziegler, “The End of Roe,” Atlantic, December 1, 2021, https://www.theatlantic.com/ideas/archive/2021/12/abortion-abortion-oral-argument-supreme-court/620874/
  21. [21]Mary Ziegler, “The End of Roe,” Atlantic, December 1, 2021, https://www.theatlantic.com/ideas/archive/2021/12/abortion-abortion-oral-argument-supreme-court/620874/
  22. [22]David Benfell, “The seven tendencies of conservatism,” Irregular Bullshit, n.d., https://disunitedstates.com/the-seven-tendencies-of-conservatism/
  23. [23]Barton Gellman, “Trump’s Next Coup Has Already Begun,” Atlantic, December 6, 2021, https://www.theatlantic.com/magazine/archive/2022/01/january-6-insurrection-trump-coup-2024-election/620843/; Robert A. Pape, “What an analysis of 377 Americans arrested or charged in the Capitol insurrection tells us,” Washington Post, April 6, 2021, https://www.washingtonpost.com/opinions/2021/04/06/capitol-insurrection-arrests-cpost-analysis/; Robert A. Pape and Keven Ruby, “The Capitol Rioters Aren’t Like Other Extremists,” Atlantic, February 2, 2021, https://www.theatlantic.com/ideas/archive/2021/02/the-capitol-rioters-arent-like-other-extremists/617895/
  24. [24]Barton Gellman, “Trump’s Next Coup Has Already Begun,” Atlantic, December 6, 2021, https://www.theatlantic.com/magazine/archive/2022/01/january-6-insurrection-trump-coup-2024-election/620843/
  25. [25]David Benfell, “The revival of lynching,” Not Housebroken, November 23, 2021, https://disunitedstates.org/2021/11/20/the-revival-of-lynching/; David Benfell, “The danger that still remains,” Not Housebroken, November 24, 2021, https://disunitedstates.org/2021/11/24/the-danger-that-still-remains/; David Benfell, “How Margaret Atwood’s The Handmaid’s Tale moves from fiction to fact,” Not Housebroken, December 1, 2021, https://disunitedstates.org/2021/12/01/how-margaret-atwoods-the-handmaids-tale-moves-from-fiction-to-fact/; David Benfell, “On the likely overturning of Roe v. Wade,” Not Housebroken, December 2, 2021, https://disunitedstates.org/2021/12/02/on-the-likely-overturning-of-roe-v-wade/
  26. [26]David Benfell, “Democrats and contradiction,” Not Housebroken, November 29, 2021, https://disunitedstates.org/2021/11/18/democrats-and-contradiction/
  27. [27]Robert Barnes, “Supreme Court seems willing to allow challenge of Texas’s restrictive abortion law,” Washington Post, November 1, 2021, https://www.washingtonpost.com/politics/courts_law/texas-abortion-supreme-court/2021/11/01/548c7ea2-3b0c-11ec-bfad-8283439871ec_story.html; Irin Carmon, “The Texas Abortion Ban Could Lose at the Supreme Court,” New York, November 1, 2021, https://nymag.com/intelligencer/2021/11/texas-abortion-ban-could-lose-at-the-supreme-court.html; Lyle Denniston, “Mixed, splintered rulings on abortion,” Law News, December 10, 2021, https://lyldenlawnews.com/2021/12/10/mixed-splintered-rulings-on-abortion/; Jordan Smith, “Texas Admits Its Abortion Law Puts All Rights Up for Grabs,” Intercept, November 2, 2021, https://theintercept.com/2021/11/02/abortion-texas-sb8-supreme-court/
  28. [28]Robert Barnes, “Supreme Court seems willing to allow challenge of Texas’s restrictive abortion law,” Washington Post, November 1, 2021, https://www.washingtonpost.com/politics/courts_law/texas-abortion-supreme-court/2021/11/01/548c7ea2-3b0c-11ec-bfad-8283439871ec_story.html; Irin Carmon, “The Texas Abortion Ban Could Lose at the Supreme Court,” New York, November 1, 2021, https://nymag.com/intelligencer/2021/11/texas-abortion-ban-could-lose-at-the-supreme-court.html; Lyle Denniston, “Mixed, splintered rulings on abortion,” Law News, December 10, 2021, https://lyldenlawnews.com/2021/12/10/mixed-splintered-rulings-on-abortion/; Jordan Smith, “Texas Admits Its Abortion Law Puts All Rights Up for Grabs,” Intercept, November 2, 2021, https://theintercept.com/2021/11/02/abortion-texas-sb8-supreme-court/
  29. [29]Irin Carmon, “This Is How Roe Ends,” New York, December 1, 2021, https://nymag.com/intelligencer/2021/12/supreme-court-looks-likely-to-kill-roe-in-mississippi-case.html; Marjorie Cohn, “For the First Time, Supreme Court Is Poised to Retract a Fundamental Right,” Truthout, December 3, 2021, https://truthout.org/articles/for-the-first-time-supreme-court-is-poised-to-retract-a-fundamental-right/; Lyle Denniston, “Mixed, splintered rulings on abortion,” Law News, December 10, 2021, https://lyldenlawnews.com/2021/12/10/mixed-splintered-rulings-on-abortion/; Linda Greenhouse, “The Supreme Court Gaslights Its Way to the End of Roe,” New York Times, December 3, 2021, https://www.nytimes.com/2021/12/03/opinion/abortion-supreme-court.html; Ruth Marcus, “The Rule of Six: A newly radicalized Supreme Court is poised to reshape the nation,” Washington Post, November 28, 2021, https://www.washingtonpost.com/opinions/2021/11/28/supreme-court-decisions-abortion-guns-religious-freedom-loom/; Ruth Marcus, “The question is not whether ‘Roe v. Wade’ is overturned — but how,” Washington Post, December 1, 2021, https://www.washingtonpost.com/opinions/2021/12/01/supreme-court-ponders-how-to-overturn-roe/; Amber Phillips, “4 takeaways from the Supreme Court arguments on abortion,” Washington Post, December 1, 2021, https://www.washingtonpost.com/politics/2021/12/01/takeaways-scotus-mississippi-abortion/; David G. Savage, “Supreme Court justices sound ready to restrict the right to abortion,” Los Angeles Times, December 1, 2021, https://www.latimes.com/politics/story/2021-12-01/supreme-court-weighs-future-of-abortion-rights-and-roe-vs-wade; Amy Davidson Sorkin, “The Supreme Court Looks Ready to Overturn Roe,” New Yorker, December 2, 2021, https://www.newyorker.com/news/daily-comment/the-supreme-court-looks-ready-to-overturn-roe; Paul Waldman, “At the Supreme Court, the bell tolls for Roe v. Wade,” Washington Post, December 1, 2021, https://www.washingtonpost.com/opinions/2021/12/01/bell-tolls-for-roe/; Mary Ziegler, “The End of Roe,” Atlantic, December 1, 2021, https://www.theatlantic.com/ideas/archive/2021/12/abortion-abortion-oral-argument-supreme-court/620874/
  30. [30]Mark Sherman, “Supreme Court returns Texas abortion case to appeals court,” Associated Press, December 17, 2021, https://apnews.com/article/health-texas-lawsuits-neil-gorsuch-d74dbd6deb60e7e9cd1777328c03dee5
  31. [31]Robert Barnes, “Supreme Court seems willing to allow challenge of Texas’s restrictive abortion law,” Washington Post, November 1, 2021, https://www.washingtonpost.com/politics/courts_law/texas-abortion-supreme-court/2021/11/01/548c7ea2-3b0c-11ec-bfad-8283439871ec_story.html; John Bowden, “Kavanaugh flags a major catch in Texas anti-abortion law for conservative gun owners,” Independent, November 2, 2021, https://www.independent.co.uk/news/world/americas/us-politics/kavanaugh-supreme-court-texas-abortion-b1949460.html; Irin Carmon, “The Texas Abortion Ban Could Lose at the Supreme Court,” New York, November 1, 2021, https://nymag.com/intelligencer/2021/11/texas-abortion-ban-could-lose-at-the-supreme-court.html; Jordan Smith, “Texas Admits Its Abortion Law Puts All Rights Up for Grabs,” Intercept, November 2, 2021, https://theintercept.com/2021/11/02/abortion-texas-sb8-supreme-court/
  32. [32]Sophia Bollag, “Gavin Newsom calls for bill modeled on Texas abortion ban to crack down on gun manufacturers,” Sacramento Bee, December 11, 2021, https://www.sacbee.com/news/politics-government/capitol-alert/article256524466.html
  33. [33]Ed Kilgore, “Is Roe v. Wade Now Doomed?” New York, May 17, 2021, https://nymag.com/intelligencer/2021/05/is-roe-v-wade-now-doomed.html; Adam Liptak, “Mississippi asks the Supreme Court to overrule Roe v. Wade,” New York Times, July 22, 2021, https://www.nytimes.com/2021/07/22/us/politics/mississippi-supreme-court-abortion.html; Nia Prater, “Supreme Court to Hear Case That Threatens Roe v. Wade,” New York, May 17, 2021, https://nymag.com/intelligencer/2021/05/supreme-court-to-hear-case-that-threatens-roe-v-wade.html; David G. Savage, “Supreme Court agrees to hear major abortion case challenging Roe vs. Wade,” Los Angeles Times, May 17, 2021, https://www.latimes.com/politics/story/2021-05-17/supreme-court-agrees-to-hear-abortion-case; Ariane de Vogue, “Mississippi asks US Supreme Court to overturn Roe v. Wade,” CNN, July 22, 2021, https://www.cnn.com/2021/07/22/politics/mississippi-roe-v-wade-abortion/index.html
  34. [34]Robert Barnes et al., “Supreme Court refuses to block Texas law banning abortions at six weeks,” Washington Post, September 2, 2021, https://www.washingtonpost.com/politics/courts_law/texas-six-week-abortion-ban/2021/09/01/e53cf372-0a6b-11ec-a6dd-296ba7fb2dce_story.html; Robert Barnes, “Supreme Court seems willing to allow challenge of Texas’s restrictive abortion law,” Washington Post, November 1, 2021, https://www.washingtonpost.com/politics/courts_law/texas-abortion-supreme-court/2021/11/01/548c7ea2-3b0c-11ec-bfad-8283439871ec_story.html; Ann E. Marimow, “Appeals court reinstates Texas’s six-week abortion ban, two days after it was lifted,” Washington Post, October 8, 2021, https://www.washingtonpost.com/politics/courts_law/texas-appeals-abortion-ruling/2021/10/08/56b9fe9e-2774-11ec-8831-a31e7b3de188_story.html; Ann E. Marimow, “Texas abortion ban remains in effect after appeals court rules against Justice Dept.,” Washington Post, October 14, 2021, https://www.washingtonpost.com/politics/courts_law/texas-abortion-appeal/2021/10/14/de27beda-2c82-11ec-985d-3150f7e106b2_story.html

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