Roe is Dead, Long Live the Courts: The Role of Courts in a Post-Roe America

Abstract

Roe v. Wade was overturned in Dobbs v. Jackson Women’s Health Organization in June 2022. The pro-choice movement, like the pro-life movement after Roe, has suffered a major legal loss after Dobbs and should learn from the pro-life movement’s incrementalist legal strategies to slowly rebuild a constitutional right to abortion. Post-Dobbs, the pro-choice movement should pursue state constitutional level to create state constitutional rights to abortion. However, the pro-choice movement should also pursue incrementalist federal constitutional litigation in “hard cases,” cases where women with life-threatening pregnancy complications are denied abortion care, to rebuild a federal constitutional right to an abortion. While a federal constitutional case for a right to an abortion may not initially translate into legal victories, such arguments can increase public support for the pro-choice movement by reframing abortion as health care and transforming public perceptions of the women who seek abortions.