Roe v. Wade didn’t end because of activism. It ended because conservatives were the beneficiaries of a few lucky breaks — and because political power in the United States is not always linked directly to the will of voters.
Were the decision put to a plebiscite vote, it would almost certainly have survived at any given point since it was made. Over the past 30 years, Gallup polling has consistently found that most Americans think Roe should stand. There was an active group of opponents agitating against it, but they were a minority within a minority.
Then, on Feb. 13, 2016, Justice Antonin Scalia died while on vacation.
President Barack Obama soon nominated Merrick Garland to fill Scalia’s seat. But the Senate was controlled by Republicans, thanks to a 2014 midterm election that saw a number of largely red-state seats (Alaska, Arkansas, Louisiana, Montana, South Dakota and West Virginia among them) flip to the GOP. The Republican senators who were serving in early 2016 had received fewer votes than the Democrats, but they held a majority. And Senate Majority Leader Mitch McConnell (R-Ky.) made clear that Garland would not be seated as a Supreme Court justice before the presidential election.
This was strictly a power play, a long-shot bid to block the appointment of a nominee from a Democratic president in hopes that a Republican would be elected that November. McConnell couched it as somehow being about reflecting the will of the population, that he simply wanted voters to decide who should fill the seat. But that was transparently contrived, as he would make explicitly clear four years later. The seat remained open.
Democrats were frustrated, but they could at least take solace in the high likelihood that Obama would be followed by another Democrat, Hillary Clinton. Polls showed she had a robust lead! McConnell was simply delaying the inevitable.
And then Clinton lost. Thanks to some 80,000 votes in three northern, Rust Belt states, Donald Trump earned more votes in the electoral college even as he lost the popular vote by nearly as large a percentage of the electorate as George W. Bush won by in 2004. The race was so close in those states that any number of things could be cited as contributing to Clinton’s loss — overconfidence, FBI Director James B. Comey’s last-minute elevation of questions about her email server, the focus on material released by WikiLeaks — but the result was the same. Trump became president.
He quickly nominated Neil M. Gorsuch to fill Scalia’s seat. Democrats opposed the move but Republicans still held the majority in the Senate (while again still having earned fewer votes than the Democrats), changing filibuster rules to allow Gorsuch’s confirmation.
Gorsuch was Trump’s pick officially, but it’s clear that Trump was mostly following the lead of conservatives who had a broader vision for what the court should look like. Trump pledged to appoint anti-Roe justices explicitly in an effort to secure enthusiastic support from the anti-Roe voting bloc; he then got recommendations on who might meet his standard.
In 2018, Justice Anthony M. Kennedy announced his retirement. He reportedly recommended that Brett M. Kavanaugh take his seat. Trump nominated Kavanaugh.
That confirmation process became a fight for other reasons, but it’s worth remembering that he, like Gorsuch, pointed to the importance of precedent in evaluating Roe. Both were understood to be opposed to abortion, but Kavanaugh’s answers on abortion in particular gave Sen. Susan Collins (R-Maine), otherwise an advocate of the availability of abortion, space to vote in favor of his nomination. Kavanaugh, too, was confirmed — by senators representing a minority of Americans.
The court now had a 5-to-4 conservative majority, thanks to Trump’s two appointments. But there had been similarly narrow conservative majorities in the past that Roe had survived.
Then, on Sept. 18, 2020, Justice Ruth Bader Ginsburg died.
Immediately, the entire thing fell into place. McConnell reconfigured his contrived 2016 standard to facilitate a rapid Trump nomination and confirmation; after all, polls looked even worse for his reelection than they had for his election in 2016. Amy Coney Barrett’s nomination was fast-tracked and she was confirmed — after a flurry of Roe questions — less than two weeks before the election.
Trump did lose that election, prompting him to spend two months fighting to retain power despite earning fewer votes than Joe Biden. Why not, really; the political right had effectively managed to increase its power dramatically for four years despite what most voters sought. That effort finally collapsed early in the predawn hours of Jan. 7, 2021.
But the power was already built. It just needed to be deployed. The state of Mississippi passed a strict antiabortion law in 2018 that was a promising vehicle. In May 2021, the court agreed to consider a legal challenge to it. The result was Friday’s Dobbs v. Jackson Women’s Health Organization decision setting aside Roe.
On Thursday, Gallup released a different set of polling related to the subject. It found that only a quarter of Americans had confidence in the Supreme Court, a record low in its polling. That was driven by deep skepticism from Democrats, only 1 in 8 of whom had confidence in the institution. That was a decline of nearly 30 points from 2016, a decline almost certainly driven largely by the ability of a Senate and president supported by less than half of voters to solidify conservative power on the bench.
Roe was law for decades. It took five years of good luck and a political system that rewards less populous, rural states for the political right to overturn it. Which, for the left, makes Friday’s decision even worse: They need time, luck — and to overcome those systemic disadvantages to see movement back in the other direction.
Roe v. Wade and abortion access in America
What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.
State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.
How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.