Further, President Biden should nominate judges who will critically assess Dobbs. Lower court judges are bound by Supreme Court precedent, but they have some tools at their disposal. They can write separate opinions that, while recognizing they must apply Dobbs, critically evaluate it, helping lay the groundwork for its eventual overruling. They can also give the historically permissive “rational basis” standard of review from the Dobbs opinion some teeth by more closely assessing abortion restrictions and the state’s purported rationales.
Lawyers will need to bring cases raising novel issues so that judges can protect abortion rights in new ways. For decades, the anti-abortion movement pursued numerous creative theories at once. It was impossible to predict which theories would succeed. Indeed, many failed. But some chipped away at or severely curtailed abortion access, contributing to the eventual toppling of Roe. Alternative theories can test how the law protects abortion rights — legal arguments rooted in equality, freedom of religion, involuntary servitude and federal pre-emption of state laws, among others. Lawyers should also file briefs arguing for Dobbs’s reversal in the abortion cases that reach the Supreme Court, just as anti-abortion lawyers did in the Roe era.
Even if cases and briefs in federal courts lose in the short term, having abortion cases in the pipeline is essential. The Supreme Court will not always look as it does today. Some of the justices are relatively young, but others are not, and their seats could become vacant at any time. When the shift in the court’s makeup happens, there must be cases ready for it to hear that would provide a vehicle for overturning Dobbs. That’s precisely what happened in Dobbs — a case that lost twice in the lower courts under Roe became the case to overturn it when the Supreme Court’s composition changed unexpectedly.
As litigation proliferates, Dobbs will reveal itself to be unworkable. This is a key factor the court relied on to overturn Roe and its progeny. Dobbs based its reasoning in part on how difficult the court’s majority believed it was to apply the relevant legal standards consistently. The test announced in Dobbs will likely suffer the same fate. Lower courts will almost certainly reach different conclusions about whether novel legal theories supporting abortion rights are viable and how rational basis applies to a variety of issues, such as medical exceptions to abortion bans, the application of laws beyond state borders and criminal sanctions against patients.
Scholars, researchers and funders have an important role to play as well. Scholars need to develop a persuasive, consistent and multidisciplinary response to the flawed history and theory in the Dobbs majority. Many have already begun to illustrate the errors in Justice Alito’s opinion as well as the impact of the decision’s logic for other areas of the law — another compelling reason to overrule the case. Researchers have begun to document the harms that Dobbs has wrought. Philanthropic funders, who are the backbone of abortion rights activism and legal strategy, need to put resources behind all of these efforts, even those that might involve short-term losses.
Developing a long-term vision to overturn Dobbs doesn’t mean simply returning to Roe. That case provided a national baseline that prohibited every state from banning abortion until the point of fetal viability. But it also had significant shortcomings. It did not guarantee abortion access for people without financial resources, who are disproportionately people of color. It said little about the broader rights of pregnant people. And the interpretation the court gave it in later cases was too forgiving of states regulating abortion.
Reproductive justice advocates have long envisioned a better abortion decision from the Supreme Court that addresses Roe’s weaknesses. Developing a strategy now to overrule Dobbs is necessary to move closer to that desired reality. It won’t be easy, and it likely won’t be quick. But if ever there were a time for hope — and for a strategy directly targeting Dobbs — this is it.