On May 2, 2022, a ninety-eight-page draft opinion written by Samuel A. Alito, Jr., an Associate Justice of the Supreme Court of the United States, was leaked to the press by Politico. The document is ostensibly the Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization, a hugely controversial case challenging the constitutionality of a Mississippi law that bans abortion after the fifteenth week of pregnancy. Alito’s words make the opinion of the Court remarkably clear: Dobbs will result in Roe v. Wade, the 1973 landmark decision establishing the constitutional right to seek an abortion, being overturned.
As is typical of pivotal moments in the history of abortion law, emotional outcry has overshadowed discussions about the legal reasoning behind Roe and Dobbs since Alito’s draft opinion became public. Pro-choice advocates are understandably devastated and furious, while pro-life conservatives are unsurprisingly elated. After all, they have achieved a victory of historic proportions: Moral Majority leaders and Republican politicians have dreamed of this moment for years. Their relentless efforts to restrict abortion access over the past several decades have finally paid off. One can imagine that Jerry Falwell is grinning from ear to ear in his grave.
Then again, this vanquishment of a longtime target prompts a serious question for the American right: What comes next?
Publicly, of course, the GOP and its leadership are overjoyed. They have finally managed to deliver on a vital component of their platform, confirming their credentials to the white evangelical voters that have proven crucial to their success over the last several years. However, many right-wing politicians and candidates would have been shrewd enough to recognize the electoral value of a seemingly permanent moral grievance like Roe, even as they went to great lengths to display their displeasure with existing case law. After all, Roe was the perfect boogeyman for rallying the religious right and ensuring consistently high turnout among pro-life Republican voters. Even as conservatives promised year after year to take action against the ruling and pursue a pro-life agenda, GOP strategists were well aware that even the Supreme Court’s conservative justices saw Roe as an untouchable precedent, especially after Planned Parenthood v. Casey upheld the constitutional right to abortion in 1992.
Of course, it now appears imminent that Roe will be overturned. Should this Republican boogeyman fall, the abortion argument may be settled for the time being where constitutional law is concerned, but such a development will not open up a void in the GOP’s platform. The party’s extremely successful strategy of appealing to voters on culture war issues will certainly not be derailed. In fact, it will become more prominent as abortion becomes an even more contentious issue in state legislatures, Congress, and beyond. With Roe finally toppled, the focus for pro-life voters and politicians will now pivot to limiting abortion rights as much and in as many states as possible. The boogeyman will shift from the legal right to abortion Roe established to abortion access more broadly; conservatives will become increasingly bullish about the prospect of the Supreme Court outlawing abortion altogether. Since the Fourteenth Amendment explicitly guarantees a right to life, they may have legitimate reason for optimism.
Beyond abortion, the Republican top brass may look to augment their focus on the culture war: pick a new issue on which to focus, direct conservative sentiment in that direction accordingly, and continue to bask in the yields of their astonishingly effective tactics. Targeting marriage rights for gay couples might be effective, given Alito’s draft opinion declined to establish Obergefell v. Hodges or Lawrence v. Texas as secure precedents. Alito asserted that key rulings like Loving v. Virginia, which ruled anti-miscegenation laws unconstitutional, and Griswold v. Connecticut, which provides a constitutional right to use contraception, will not be undermined by Dobbs, but some commentators have sounded alarm bells that Alito’s view of abortion as not explicitly nor historically subject to protection by the Constitution could justify the overturning of precedents like those set in Loving, Griswold, and others in the future. As a result, conservative lawmakers may try their luck restricting access to contraceptives like IUDs or morning-after pills.
It is fairly self-evident that all of these developments are nightmare fuel for Democrats, particularly those among the party’s liberal and left wings; criticisms of Dobbs are likely to gain more traction very soon. That said, it does not appear that more incendiary debates over contentious social issues like abortion will backfire on Republicans; in fact, more controversy will probably mean more triumphs for the GOP. While Democratic voter preferences are fractured by discussions of culture and society, these same debates effectively unify and energize the conservative base, ensuring that right-wing voters will only be more inclined to join the Republican crusade. And even if the fallout from Dobbs results in a spike in turnout and more ideological consensus for Democrats in November, Republicans will be more than prepared for this challenge at the ballot box.
No Supreme Court decision in recent memory has impacted American political discourse as monumentally as Dobbs could, and this shift will unquestionably be auspicious for conservatives. Even if pro-choice actors manage to collect themselves and polish their rhetoric, the electoral prospects of pro-life Republicans will likely be much stronger for it. There are plenty of arguments to be made that conservatives are losing America’s culture war, but no one can deny that they appear poised to score an enormous victory in the battle that is Dobbs — and if recent history can provide any indication, the American right only has more triumphs ahead of them.