After “Dobbs,” the Path Forward Is Not Through the Courts

After “Dobbs,” the Path Forward Is Not Through the Courts

After Dobbs, the Path Forward Is Not Through the Courts

I’m a lawyer and the executive director of the ACLU. We can only do so much without a new political movement for abortion rights.


Now that the Supreme Court has overturned Roe v. Wade, we cannot rely on the federal courts to keep clinic doors open. Make no mistake, the ACLU and our partner organizations will litigate whenever and wherever we can to protect abortion rights. In the aftermath of the decision in Dobbs v. Jackson Women’s Health Organization, there will be hundreds of restrictive laws and statutes for lawyers to scrutinize. Litigation, even in losing battles, can be useful. It can focus public attention and galvanize popular opinion. Good litigators will bring smart litigation to keep abortion legal in as many places as possible for as long as possible. If opponents are trying to take away our fundamental rights, we should make it as difficult as possible.

But while it may sound strange coming from the lawyer who heads the ACLU, the real path forward is not through the courts. We must turn to the political process and increase pressure on elected officials—especially at the state and local level. State Constitutions will provide opportunities for new advocacy. We can enact constitutional amendments and pass ballot measures that expand abortion rights and access, as we are doing in Michigan this November.

Looking toward the 2022 and ’24 elections, abortion must be at the center of the public debate. With as many as 85 percent of Americans supporting abortion rights, candidates from either party who don’t unequivocally support abortion rights should have nowhere to hide. Politicians who mumble their answer to the question, “Do you support abortion rights?” must be forced to start their answers with a simple “yes” or “no,” and provide specific plans to restore and protect access to abortion care. And we need to vote based on those answers.

Democrats should be put on the spot. West Virginia’s Joe Manchin, for instance, supported a Republican-introduced bill that would have criminalized some abortions. But we should also appeal to Republicans. About 40 percent of Republicans think abortion should be legal in all or most cases. When the Constitution protected abortion, Republicans could sound tough on abortion without paying a political price. As clinics are shuttered and women, Democrats and Republicans alike, are denied abortion services, anti-abortion politicians may find it increasingly uncomfortable to maintain that stance.

We also need to put pressure on the few Republicans who supported abortion rights but still supported anti-abortion judges. Senator Susan Collins finds herself in a political trouble, having supported Justices Neil Gorsuch and Brett Kavanaugh while receiving private reassurances that they would respect precedent, indicating that they would uphold Roe. The senator may feign shock and disappointment at her betrayal, but she should now be pushed to spend the $2.6 million balance in her campaign war chest to support pro-choice candidates of both parties in federal and state elections. Collins needs to do more than issue a statement that begs credulity.

As we head into July, a rolling cascade of abortion bans will take effect, and the chaos and crises will be unlike anything we have ever seen. Advocates will need to chronicle stories and implement an aggressive media strategy. When the right to abortion was protected by the federal Constitution, anti-abortion forces could advance their message without facing the full pain and suffering its realization would deliver. We need to lay bare the new reality that the Supreme Court has wrought.

Given the patchwork of abortion access in the states, we should prioritize direct legal assistance. Abortion providers and patients caught in the legal crosshairs of a post-Roe reality will need representation. Access to qualified counsel is going to be essential in those states that begin to criminally prosecute individuals based on aggressive interpretations of state laws.

The Dobbs decision will also create a whole new set of cross-cutting legal issues. Digital surveillance is likely to increase, as private parties and government officials endeavor to prove that someone has unlawfully accessed abortion services. Defending the right to travel will be essential as a safety valve for those living in hostile states. And these issues are further compounded for women and individuals who are incarcerated or held in immigration detention. Those detained or incarcerated in blue states will have greater access to abortion services than those detained or incarcerated in red states.

There is no one solution to the crisis we now confront. The fall of Roe will reverberate in many other contexts and affect rights and liberties beyond abortion. We know we will not restore abortion rights in one election cycle or one legislative session—but we will fight for as long as it takes.

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