Yet, Stewart and the center wouldn’t be the only ones making their case about abortion rights to the Supreme Court in the summer of 2021. Two days after the Supreme Court agreed to hear Dobbs in May, the governor of Texas signed the newest, most restrictive abortion ban in America. Suddenly, Mississippi’s law looked almost moderate. Texas now outlawed abortion after about six weeks of pregnancy, with no exceptions for rape or incest. With its new law, the state that gave America Roe in 1973 had found its own novel way to take it away.
The law—SB 8—included an unconventional mechanism to circumvent Roe by giving the power of enforcement not to state officials but to ordinary citizens. It created a new class of citizen-policers who could sue people they believed might have helped a woman get an abortion—anyone from doctors and clinic leaders to Uber drivers who transported a woman to her appointment. Anyone inside or outside of Texas could become a potential bounty hunter and get a $10,000 reward if they won their lawsuit. The only people involved with the procedure whom the law protected were the abortion patients themselves, who could not be sued. Rapists could not sue providers or others who helped with the abortion, to prevent an assailant from cashing in on an assault, but “an angry ex-boyfriend” could be considered an “appropriate plaintiff”— a provision that underscored the twisted enforcement mechanism of the law.
Typically, abortion-rights supporters sued state officials—like Dobbs in Mississippi—to block restrictions in federal court. Judges in those courts could strike down the laws on constitutional grounds, arguing they were clear violations of Roe. The state would appeal, and the cases often took years and cost millions to resolve.
Even some antiabortion Republicans in the Texas legislature weren’t eager to pay millions defending another restriction. SB 8 was designed to assuage some of those concerns. The elimination of state officials as legal enforcers could make it harder for the abortion-rights lawyers to sue in federal court, pushing the cases into Texas state-level courts, where conservative judges were typically friendlier to the antiabortion cause—potentially limiting the length of the litigation and the cost of appeals. Even better, the law could be enacted more quickly because any legal challenge would have to wait until a citizen brought a lawsuit.
Abortion providers, once again including Whole Woman’s Health, sued in federal court anyhow, naming officials who were not directly tasked with enforcing SB 8 but still had authority over related laws. The new law, they wrote, “flagrantly violates the constitutional rights of Texans seeking abortion and upends the rule of law in service of an anti-abortion agenda.” To much of the public, SB 8 seemed shocking. It had seemingly emerged from nowhere and went into effect so quickly. The law was widely unpopular, including among Republicans and white evangelicals. A majority of Texans had supported the twenty-week ban that Wendy Davis filibustered in 2013. But now, 69 percent of adults in the state said that this near-total was too restrictive. Those results foreshadowed the changing political reality as the laws grew far more aggressive: even in deeply conservative states, opposition to abortion had limits.
Still, the Texas law quickly became a new template for antiabortion activists. The National Association of Christian Lawmakers, a group started by Arkansas state senator Jason Rapert, who had championed ADF’s eighteen-week bill, made the Texas law its first piece of model legislation in July. Soon, more than half a dozen states put forth similar bills. The law’s enforcement mechanism, boasted Rapert to the Deseret News, was like “putting a SCUD missile on that heartbeat bill—they can’t stop it.”
For years, people like Leonard Leo, Marjorie Dannenfelser, and the ADF lawyers had carefully plotted their way toward overturning Roe. But this law marked a transition to a new, more radical approach. What was happening in Texas was a different version of what Scott Stewart was trying in Mississippi, an effort by the post-Roe generation of lawyers, lawmakers, and activists to accelerate the strategy of their movement’s elders.
Donald Trump’s embrace of the fringes of conservative politics and his transformation of the Supreme Court had emboldened this new generation. Stewart pushed the bounds of the conservative legal project fostered and grown by ADF, Leo, and the Federalist Society. Whether intentionally or not, his brief made common cause with antiabortion activists who had long been frustrated by the movement’s incremental approach. The most conservative of this new cohort often called themselves “abortion abolitionists” and crusaded through Southern churches, legislatures, and college campuses preaching that the movement needed to end all abortion from conception. The remade antiabortion movement pushed states to introduce more than 660 abortion restrictions that year, and 108 laws were enacted in nineteen states—the highest total since 1973. Some instituted tight restrictions that would go into effect if Roe were overturned. Others tried to advance their own strategies to overturn Roe or gut it. Six states banned mail-order abortion medication. Arizona enacted a ban on abortion for reasons of genetic abnormalities. Just as Republican officials could no longer control their Trump wing, Dannenfelser, Leo, and their Washington world—what the abolitionists derisively called the “pro-life establishment”—were watching their carefully laid plans be taken over by an unruly fringe. Victory seemed closer than ever, and it energized the abolitionists to charge ahead to the broader movement’s underlying ultimate goal: to criminalize all abortion. The fringe was becoming the mainstream.
THE RADICAL TEXAS law meant that just weeks after Stewart filed his brief, an entirely different abortion law was fast-tracked for Supreme Court review. Northup and the center filed a last-minute emergency motion to block the Texas law from going into effect on September 1. But this was a new Supreme Court, one where a conservative majority held sway. The deadline passed, and the court said nothing. Just before midnight, the justices formally denied the motion in an unsigned, bitterly divided ruling. John Roberts dissented, calling the law an unprecedented “statu- tory scheme.” But the law was allowed to go into effect—even as it denied Texas women the constitutional rights that Roe had established.
“What a pity that we cannot do the right thing,” wrote Sonia Sotomayor in a one-line email to Samuel Alito sent minutes before the law would go into effect, begging the court to issue a decision.
America now had its first post-Roe state. The nearly seven million women of childbearing age who lived in Texas would no longer be allowed an abortion, unless they knew they were pregnant almost immediately.
Despite the massive scope of the ruling, there was no questioning of lawyers at oral arguments and no monthslong grappling with the decision. Instead, the law went through the “shadow docket,” a quicker decision-making process that was traditionally used by the court to deal with urgent matters, like issues related to elections, voting, or capital punishment. During the Trump administration, the court started using the process to deal with less pressing but more politically charged issues like regulatory actions that would be challenged by advocacy groups or liberal states—sometimes even before the appeals court had a chance to issue a decision.
The shadow docket shielded justices from individual criticism. The only reason the public knew the precise vote on the Texas law, 5–4, was that each of the minority justices wrote a signed dissent, suggesting the depth of their disagreement. The majority’s 401-word, single-paragraph ruling amounted to a constitutional dodge, a way to ban abortion and violate the standard set in Roe while circumventing the thorny legal issues such a ruling raised.
“The Court’s order is stunning,” fumed Sotomayor. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
Some conservatives saw a different, quieter sign in the ruling. The Mississippi case was just three months away from oral arguments. Why would the court uphold a six-week ban if it planned to strike it down in their Mississippi ruling? The conservative majority must be leaning toward overturning Roe. Conservatives now stood, as one evangelical adviser to Trump put it, at the “one-yard line.”
TEXAS OFFERED A preview of what a new America would look like if Roe fell. And it showed just how little abortion-rights activists could do to stop the forward momentum, despite a sudden flurry of efforts.
The day after the ruling, President Joe Biden pledged “a whole-of-government effort,” directing the Department of Health and Human Services and the Justice Department to identify federal measures that could ensure abortion access for Texas women. The Justice Department sued the state of Texas asking to immediately block the law. It was the first lawsuit by the federal government challenging the constitutionality of a state abortion restriction. Biden’s attorney general, Merrick Garland—the judge Republicans had blocked from a Supreme Court hearing when Antonin Scalia died—said the law was “clearly unconstitutional under long-standing Supreme Court precedent.”
Representative Diana DeGette, the co chair of the Pro-Choice Caucus, called House Speaker Nancy Pelosi and told her she had a bill ready to enshrine abortion rights into federal law. It was a version of the Women’s Health Protection Act that Northup had unsuccessfully pushed on Capitol Hill during the Obama administration. But now, with an abortion-rights majority in the House, it had 203 cosponsors. When Pelosi brought the bill to the floor three weeks later, it passed with the support of nearly every Democrat.
Vice President Kamala Harris invited abortion providers and patients into her offices—the first time they were welcomed into Biden’s White House for a public meeting. The fact that it happened eight months after he took office cut a striking contrast from the overwhelming welcome antiabortion advocates received during the Trump administration, when Mike Pence immediately addressed the March for Life.
But the problem Democrats faced was simple: they were too late. Their efforts might have seemed like action, but they were futile compared to the systematic, all-encompassing campaign antiabortion activists had waged over the past decade. Republicans had the state legislatures. They had a top-to-bottom network. They had the court. They had the power they needed to change American life.
The Supreme Court refused to halt the Texas law three different times in the following months, dismissing the Justice Department’s appeal in a one-line, unsigned ruling. The Democratic legislation to codify Roe into federal law failed in the Senate that winter, after Senator Joe Manchin, a Democrat, and Republican senators Susan Collins and Lisa Murkowski opposed it. Collins and Murkowski later introduced their own bill, a narrower approach that they said would protect health care providers who do not want to perform abortions, like Catholic hospitals. That legislation failed to gain enough traction with Democrats.
Once again, abortion-rights advocates tried to mobilize the majority of Americans who backed the cause against this new round of abortion restrictions. Thousands marched in Washington that fall, wearing shirts emblazoned with “1973,” under a banner reading, “Rally for Abortion Justice.” But those kinds of public protests hadn’t worked in the past. Wendy Davis filibustered; the twenty-week ban still stood. The Women’s March was the largest single-day protest in American history; the Trump administration became the most successful antiabortion administration in history.
As the Mississippi case moved toward the highest court, the groups most devoted to Roe’s defense were spending significant time mediating wrenching internal disputes. While their opposition had worked with singular focus to take down Roe, abortion-rights advocates were fighting for intersectionality, an attempt to strengthen their movement by expanding alliances with other progressive allies.
At Planned Parenthood, as Texas lawmakers were preparing their law, Alexis McGill Johnson was restructuring her organization along those very lines. She wrote an op-ed for The New York Times disavowing Margaret Sanger’s association with eugenicists, saying Planned Parenthood’s founder courted white supremacists. “What we have is a history of focusing on white womanhood relentlessly,” McGill Johnson wrote. “By privileging whiteness, we’ve contributed to America harming Black women and other women of color. And when we focus too narrowly on ‘women’s health,’ we have excluded trans and nonbinary people.”
McGill Johnson promised new support for the Black Lives Matter movement and transgender rights and pledged to fight “the many types of dehumanization we are seeing right now.” If Sanger was “Karen’s godmother,” as she had told her staff, Planned Parenthood had to stop being an “organizational Karen”—showing up, asserting itself, and telling everyone else where to march—leveraging its privilege, she wrote. “What we don’t want to be, as an organization, is a Karen. You know Karen: She escalates small confrontations because of her own racial anxiety.”
The piece prompted a furious backlash from historians and biographers, who argued that Planned Parenthood was imposing a twenty- first-century understanding on Sanger’s twentieth-century beliefs. McGill Johnson’s focus on reconciling Planned Parenthood’s complicated legacy around race spoke in the language of the moment about a cause that was roiling liberals across America. But as McGill Johnson announced Planned Parenthood’s new trajectory, also notable was what she left out. The flood of new restrictions—and the incoming threats of laws like in Texas and Mississippi—appeared only as a clause, a sixteen-word aside about “relentless attacks.” What Planned Parenthood faced in that moment was so much more than just “relentless attacks.” It was an entire network pushing to undercut the very purpose of their organization, women’s health and sexual freedom. At a moment of ultimate vulnerability for so much that they had championed, McGill Johnson did not mention Roe at all.
She was not the only one in her movement focused on the intersection of race and abortion rights. When a group of abortion-rights activists, progressive allies, and White House aides got on a call to figure out a response to the Texas law, shortly after the Supreme Court’s terse ruling, at least one activist said their central goal should be to eradicate “white supremacy.” To reproductive justice advocates on the call, Roe had never fulfilled the promise of accessible abortion in communities of color. Tackling structural racism was the new foundation they needed before they could make progress on anything else. Yet, for other movement stalwarts, the call to focus on race sounded like a shift in mission, away from fighting for Roe and all it stood for, at the very moment they were on the verge of losing everything.
Debates over race weren’t the only divisions exposed by the movement’s new push toward intersectionality. Driven by transgender activists, abortion-rights groups had increasingly adopted gender-neutral words to talk about their issue. The shift in language consumed an outsize amount of media attention, at times overwhelming public discussion of Roe’s fragile status. After Representative Cori Bush of Missouri, a progressive Democrat, used the term birthing people in a congressional hearing about Black maternal mortality, it erupted into a mini-uproar on social media—one that subsumed coverage of the actual topic of the hearing.
For some, like Diane Derzis, the owner of the Pink House and Northup’s client in the coming Mississippi case, all the drama over language seemed like a distraction from their most pressing issue: the end of a foundational constitutional right for women. “I’m all for trans and gay rights, but them and abortion don’t go together. They’re not similar, they’re totally different,” she said. “That’s hurt us.” The issues, she believed, had become linked in a way that she feared would alienate more moderate supporters of abortion rights. She worried that political correctness was endangering their cause. “We’re too PC to say it,” she said. “I support your right, but don’t put it with mine.”
Still, after decades of largely white, straight leadership, the abortion-rights movement had changed. The three most powerful liberal women’s political groups—Planned Parenthood, EMILYs List, and NARAL—were now all headed by women of color. Planned Parenthood had McGill Johnson. EMILYs List selected Laphonza Butler, a former union leader who grew up in Mississippi, as the first Black woman—and first mother—to lead the organization. And at NARAL, Mini Timmaraju took over for Ilyse Hogue, who’d left a few months after the election. The daughter of Indian American immigrants, with a background in working to preserve reproductive rights in Texas, Timmaraju joined the organization from roles overseeing diversity hiring for the new Biden administration and Comcast.
In the fight over abortion rights, the intersection of women’s rights and civil rights was brought to a head. To some, it felt like there was something slightly unfair about the transition. Non-white women had spent decades fighting for their place in the movement. Now, these leaders were finally getting the mantle when all seemed nearly lost.
And in Texas, abortion rights were crumbling before their eyes, remaking decades of reproductive health care in an instant. A law didn’t stop women from getting pregnant. Or from wanting abortions. In one high-profile incident, sheriffs in the Rio Grande Valley arrested a twenty-six-year-old woman and charged her with murder for a self-induced illegal abortion. Few details were made public, including how the abortion was performed, but the situation prompted protests outside the jail and confusion among local prosecutors. The district attorney later dropped the charges and issued an apology. But the arrest illustrated the power rogue prosecutors could suddenly have over women’s reproductive lives when abortion laws changed.
Some doctors, fearing running afoul of the vague Texas law, began talking in coded language to their patients about their health care options, saying things like, “The weather’s really nice in New Mexico right now. You should go check it out,” or “I’ve heard traveling to Colorado is really nice this time of year.” Clinics in surrounding states were inundated with patients, creating a domino effect that decreased the availability of appointments in those places, drove up costs of procedures, and pushed some residents to also travel out of states where abortion was still legal for their procedures.
Some Texas women drove all the way to the Pink House—the Jackson, Mississippi, clinic that the Dobbs case was trying to shutter. “That just shows you how desperate it’s going to be,” Cecile Richards said, the irony not lost to her.
But despite those harrowing and chaotic scenes, the idea that a constitutional right could be removed seemed unbelievable to many on the left. Roe had been part of women’s reproductive planning for two generations. It was hard to reimagine a world without it.
Even after the Texas law, only one in three Democrats thought the Supreme Court was likely to overturn Roe, according to a Planned Parenthood poll of voters in states expected to have some of the most competitive races in the 2022 midterm elections. The survey was conducted in November 2021, just twenty days before Stewart and Northup’s lawyers would face off in oral arguments at the court. The vast majority of people that Planned Parenthood expected to be on their side were not only unprepared for what was coming, but felt no real political urgency around it.
“Strategic Imperative,” the Planned Parenthood pollsters wrote in an internal memo. “In the coming months, it will be important to remind voters what is at stake in the impending Supreme Court decision on Roe vs. Wade, including the potential for restrictive laws in their own states.”