A decision of the Supreme Court, once made, nearly always stands. Less than 1 percent of the court’s more than twenty-five thousand decisions have ever been expressly reversed since the founding of America. When the court rules about the meaning of the Constitution, it has lasting power to define the country.
But words of a dissent are not always lost to history. There is a tradition in the United States, Ruth Bader Ginsburg had said, where eventually, over time, the greatest dissents become the law of the land. “That’s the dissenter’s hope: that they are writing not for today but for tomorrow,” she said in 2002. Dissents can point the country toward a future age, hinting at a path for justices on future courts to change the country.
In a way, the dissent in Roe from 1973 became the majority opinion in Dobbs. Justice Byron White, the justice whom Ginsburg replaced in 1993, wrote the opinion disagreeing with the court’s decision in Roe and expressing the yearnings of the then nascent abortion opposition to one day fight back.
“The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries,” he wrote. “I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.”
After forty-nine years, the antiabortion movement had made White’s dissent America’s new reality. Just as White argued in Roe that there was “nothing in the language or history of the Constitution” that supported a right to an abortion, so did Samuel Alito argue in Dobbs.
But now there was a new dissent. The three justices appointed by Democrats, two Jews and one Catholic—Stephen Breyer, Elena Kagan, and Sonia Sotomayor—had written an agonized opinion, warning that the court had done grave damage to women’s equality and the court’s own legitimacy. Their jointly authored dissent was unusual, a signal of how strongly they disagreed with the decision.
Their language was furious. “The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all,” they wrote. “And no one should be confident that this majority is done with its work.”
Women’s lives and the expectations they had for them would be fundamentally transformed by this decision, they argued, whether or not they became pregnant. In the stroke of a pen, Dobbs had remade the futures of 167.5 million American women.
“After today, young women will come of age with fewer rights than their mothers and grandmothers had,” the dissenters wrote. “The majority accomplishes that result without so much as considering how women have relied on the right to choose or what it means to take that right away.”
Yet the impact wasn’t limited to women’s lives. The decision, they wrote, threatened the very legitimacy of the court in American life by undercutting the legal doctrine that courts should honor previous decisions. The court appeared “not restrained but aggressive, not modest but grasping,” they wrote.
“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” they said. “The majority thereby substitutes a rule by judges for the rule of law.”
They concluded with overt words of sadness, a rare seeping of emotion into the legal language of the court. “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”
The three justices weren’t the only dissenters. A year and a half after Dobbs, the Center for Reproductive Rights represented a Dallas mother of two, Kate Cox. She sued to be granted an abortion under the minimal medical exceptions in the Texas ban, after receiving a severe fetal diagnosis that threatened her health and future fertility. The Texas Supreme Court denied her appeal and she traveled to New Mexico for her procedure. “The state of Texas wanted me to continue a pregnancy where I would have to wait until a baby dies in my belly, or dies at birth, or lives for days, and put my own health at risk and a future pregnancy at risk,” she told CBS News, a few weeks later.
Twenty-two other Texas women filed a separate lawsuit claiming the denials of their abortions violated their rights under the state constitution. Dr. Austin Dennard, an ob-gyn in Dallas who joined that lawsuit after leaving the state for her own abortion, said she never expected Roe to fall, even as she watched restrictions on abortion multiply in Texas over the past decade. She had been “blissfully naive,” Dennard said. And then, suddenly, abortion laws were part of her daily life. A sixth-generation Texan, she considered moving to a state where abortion remained legal and she could practice obstetrics without the possibility of legal threats. Instead, she stayed and became engaged in politics, even agreeing to be featured in an early ad for Biden’s reelection campaign. “Being so silenced and so gaslit in states like Texas, it’s like a whole additional form of oppression,” she said. “Almost more painful than having to go out of state is feeling like you had to be silent about it afterwards.”
After Dobbs, Dennard, and so many other women, would no longer stay silent. There would be other women and other lawsuits. Their cases would move through the courts. It took nearly half a century for the antiabortion movement to take down Roe. But their fight showed that history was not stagnant. A victory once won could become a defeat in the future. A defeat could become a victory.
SIX DAYS INTO this new America, the first post-Roe justice took her oath of office for the Supreme Court. For the first time, there were four women on the court. And, for the first time, a Black woman. As she transformed the court, she also entered a court transformed, riven by polarization and mistrust, ruling over a divided nation.
Cameras flashed as Ketanji Brown Jackson took her seat at her Senate confirmation hearing, in the spring before the decision. She had clerked for Breyer, the man she replaced, two decades earlier. Now only Clarence Thomas remained as a justice from that time. Jackson, a Harvard graduate twice over, whose family descended from enslaved people, was a year older than Amy Coney Barrett and also a mother, with two daughters. She had been confirmed by the Senate three times for other positions, winning support even from a handful of Republicans. She looked like no one who had preceded her in the Supreme Court confirmation chair.
The hearing made clear the new questions that would define her era. As the questioning on the second day dragged into hour thirteen, Marsha Blackburn, the lone Republican woman on the committee, took the microphone. The senator, who famously preferred the title congressman during her earlier years in the House, had made her name through the antiabortion cause. She led one of the congressional committees that investigated Planned Parenthood in 2015, fanning the controversy with the audacious charge that the group was selling “baby body parts on demand.”
“I’m a pro-life woman,” Blackburn now explained, in her honeyed Tennessee twang, from the edge of a long U-shaped table. “I find it incredibly concerning that someone who is nominated to a position with life tenure on the Supreme Court holds such a hostile view toward a view that is held as a mainstream belief that every life is worth protecting.”
The Dobbs decision was coming soon, Blackburn said. There would be a new precedent. Would Jackson commit to following the court’s decision on Dobbs, should Roe no longer apply? It was the reverse of the standard question about Roe that Republicans had asked for decades. Now, Blackburn was asking whether Jackson would respect what her movement had spent so many decades working to achieve: the fall of federal abortion rights as a new precedent in American law.
The woman who would become the country’s first Black female justice responded calmly and clearly, giving an upside-down—and yet the same—version of the answer used by Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “Whatever the Supreme Court decides in Dobbs will be the precedent of the Supreme Court. It will be worthy of respect in the sense that it is the precedent.”
Blackburn pivoted to another question, one that was far more unusual. It was one that no one could remember ever being asked of a Supreme Court nominee. “Can you provide a definition for the word woman?” she asked.
Jackson paused. “Can I provide a definition? No. I can’t,” she responded.
“You can’t?” asked Blackburn, her voice rising.
“Not … not in this context,” Jackson responded. “I’m not a biologist.”
Blackburn pounced. She expressed concern about a transgender swimmer who won a collegiate swimming championship just days earlier. For conservatives, this was a gotcha moment, a way to stoke conservative outrage about transgender rights and show how far the country had strayed from traditional values. “The fact that you can’t give me a straight answer about something as fundamental as what a woman is, underscores the dangers of the kind of progressive education that we are hearing about,” Blackburn said. “It tells our girls that their voices don’t matter.… I think it tells them that they are second-class citizens.”
Americans didn’t have a clear answer either. Searches of the word woman spiked after the exchange, leading Dictionary.com to select it as the word of the year for 2022. The word woman, so simple and common, was “inseparable from the story of 2022,” they wrote. Decades of political warfare happened over abortion and pregnancy, a nine-month period when women gave of their own bodies and blood to grow new beings. Yet the symbolism of Roe had been so much bigger than just the temporary phase of pregnancy. When the nation fought about abortion, it was debating the place of women in American life.
For nearly half a century, Roe was seen as a foundation of women’s freedoms in America. A pregnant woman could legally choose whether she wanted to bear a child. It was a ruling ushered in by a rapidly changing understanding of women’s place—economically, legally, and domestically—in the national project. When Roe was decided, women could not get a credit card in their own names, could not legally refuse sex to their husbands, lacked guarantees not to be fired if they became pregnant, and did not have legal protections against sexual harassment. There were no female senators, and the first female Supreme Court justice—Sandra Day O’Connor—would not be confirmed for another eight years.
The Dobbs decision effectively restored childbearing as an inescapable fate for pregnant women and girls in broad swaths of conservative America. Yet it could not turn back the clock. America was changing. And as Jackson’s presence on the congressional dais underscored so vividly, the societal changes since Roe were now “deeply rooted”—if not in American history, then certainly in the reality of the American present.
Dobbs was now the guiding force for the country’s laws. But the mass outrage that met the ruling showed that the country had not resolved the essential question intertwined with the long national battle over abortion: What rights is a woman owed?
In America, a nation that from its founding declared that all men were created equal, it was never in doubt that all white men had rights. But from the beginning, the place of women was always less certain, as Abigail Adams made clear to her husband in 1776 when he served in the Continental Congress to craft the foundation of this new nation: “I desire you would Remember the Ladies, and be more generous and favourable to them than your ancestors,” she wrote. “Remember, all men would be tyrants if they could.”
Generations later, even the most basic understanding of the role and rights of women in the American experiment, even the essence of what makes a woman herself, remained unresolved. The majority of justices in Dobbs, representing a minority of Americans, declared one answer.
A minority of justices in Dobbs, representing a majority of Americans, had their own reply.
And on the final day of Jackson’s hearings, when the Republican senators returned to Blackburn’s line of questioning about womanhood, the soon-to-be newest justice offered an answer of her own. It cut through political lines. It did not wrestle with faith or race or ideology or the law. Instead, it spoke both to a woman’s sense of self-determination and the interdependent relationship that defined the abortion question for so many.
“I know I am a woman, I know Senator Blackburn is a woman,” she said, her voice strong. “And the woman I admire most in the world is in the room today. My mother.”
The building on the corner of Fondren Place and North State Street in Jackson that once was the Pink House was now repainted a creamy white. There was a new green lawn, and a freshly paved parking lot. All the signs that supporters had posted on the big black fence in the clinic’s final days—handwritten vows of resistance like “These people, this place has saved my life” and “Let this radicalize you rather than lead you to despair”—were gone. So was Diane Derzis, the owner of the bubble-gum-pink abortion clinic, and Shannon Brewer, the director. They had gone west to the desert of Las Cruces, New Mexico, 1,100 miles away, where Derzis had bought a former dentist’s office with plans to make it the Pink House’s new home, in a state where abortion seemed like it would remain legal.
The owner of a luxury consignment furniture shop up the street had snagged their old building when it went up for sale, and spent months renovating it. About a week after its grand opening, new women came. One waited under a blue awning for the shop to open at 10:00 a.m. so she could look at a lamp for her mother. Another came to find a dining room table.
They wandered inside, between manicured antique desks and porcelain dish sets, hutches with teacups behind the glass and Chinese calligraphy brushes hanging on the wall. On a console table rested a stack of Norman Rockwell books, and wood and iron statues of crosses and angels.
Asked what it felt like to own a piece of American history, the new owner did not seem to understand the question. David Carpenter instead focused on his customers, and had no comment on the Dobbs case. It had nothing to do with him, he said. This was just a building.
“It’s an investment,” he said, gesturing to the main street outside with a shrug.
In New Mexico, the new Pink House West—officially the Las Cruces Women’s Health Organization, or LCWHO—would not be pink but beige, small, and with no sign. It was one medical building among many others, old territorial-style brick structures with red roofs—a dentist, a cardiologist, and a blood-draw site.
Derzis had started thinking about moving in 2021, after the Supreme Court had agreed to consider the Dobbs case. She knew that New Mexico would likely become the closest place for millions of women to get an abortion after it would be banned across so much of the South and Midwest.
The towns right on the Texas border would provide the closest access to the women who would be traveling across the country. But Derzis didn’t see them as a real option. They were too “Trumpy,” she reported after visiting. She’d been in the abortion business long enough to know her opponents. In those conservative areas, they would face constant threats from antiabortion activists pushing local ordinances to make the towns into sanctuary cities for the unborn—a way of putting them out of business. Derzis didn’t want to deal with that if she could avoid it. But Las Cruces, a liberal city sandwiched between the Chihuahuan Desert and the angular spires of the Organ Mountains, about forty minutes from El Paso, could work. The sixteen-hour trek from Mississippi meant traveling across the northern reaches of Louisiana and the broad expanse of Texas, both states where abortion was banned.
For Brewer, the decision to uproot her life wasn’t that difficult. She wanted to keep fighting. But the pain of leaving behind Mississippi women—her women, she thought—haunted her. “I can keep moving forward and helping women but there’s something about Mississippi,” she said on the day Roe fell. “I understand Mississippi women. I understand everything about their struggles and everything they go through because…” She paused to take a ragged breath, to hold back tears. The rest of her words came out in a rush. “Because those are the same struggles I’ve gone through in my life.… Nothing,” she said, “about what went on today is going to tell me that this was right.”
Brewer liked that the new building was surrounded on two sides by flash flood ditches, or arroyos, and that the entrance was behind the building, not right off the street. They were physical barriers, she thought, against the protesters she expected to soon see. It was nothing like the iconic old building in Jackson, with its unmissable exterior and corner lot. The only real identifying mark came inside on the brick floor: A black welcome mat with pink letters that read, “Welcome to LCWHO ‘Pinkhouse West.’”
Derzis hated the austerity of the décor. The dentist had painted his offices in sterile medical tones of brown, green, and beige. She wanted some pop to create a place that felt warm and inviting. Color made her feel good. They painted the walls yellow, fuchsia, and orange.
She shipped art from her house up north in Pecos and installed her pieces in the new clinic. They were cheerful paintings of a blue dress shirt and a red tie, big blue hearts on a bright yellow background, and a woman in oversize white sunglasses—just like the ones Derzis wore to her last press conference at the old Pink House. When Derzis saw her art hanging on the walls, she cried.
As they prepared the clinic, Brewer called Derzis with surprising updates. People from the town were dropping off food. They were stopping by to welcome her. This felt nothing like Mississippi, she reported.
The Pink House West opened quickly—just weeks after the decision—and provided abortion pills along with surgical abortions until sixteen weeks, as it had in Mississippi. New Mexico, with its Democratic leadership, was touted as a haven for abortion access. But even there, it was limited. A year after Roe fell, New Mexico had only six surgical abortion clinics that provided abortions after about eleven weeks of pregnancy. The Pink House West was the only one outside of Albuquerque.
Inside the clinic, Derzis built a large fake-brick wall to block the nearly two-story-high windows. No one could see inside, where women would wait in a room with a cozy Southwestern-style area rug and a table offering tea and Folgers coffee. Behind the check-in counter, the staff took calls and filed papers. Other than Brewer, only one of the Mississippi staff made the long journey to a new home. It was quiet, except for a television in the corner of the small waiting room and a ceiling fan whirling slowly.
Derzis remembered reading about Roe in the paper when the decision was first announced in 1973. A year later, she got an abortion herself. She was married then but didn’t feel ready for a baby. Her husband found a doctor in Birmingham, Alabama, who performed the procedure for $150. She’d never forget what he told her: “You didn’t have any problem spreading your legs before, so spread them now.” Her mother, back in the Shenandoah Valley, told her she would regret it. Derzis never did. When the first clinic later opened in Alabama, Derzis pestered the staff until they hired her as a counselor for $5 an hour. When a second clinic opened on Birmingham’s south side, she was asked to run it.
Nearly a quarter century later, in 1998, the clinic she opened in Birmingham was bombed by Eric Rudolph, a domestic terrorist later convicted for a series of bombings across the South. The explosion, believed to be the first fatal bombing of an abortion clinic, would kill a security guard and severely injure a nurse. Derzis was back in the clinic days later, surveying the blown-out windows and doors.
Over the decade that followed, her opponents derided her as the “abortion queen.” Derzis embraced the moniker. She opened clinics in Columbus, Georgia, and Richmond, Virginia, bought the Pink House, and kept ownership of her building in Birmingham as long as she could after losing an extended legal battle with the state health department.
Derzis’s lifetime had encapsulated the Roe era. She gained the right as a young woman, and at sixty-nine, she couldn’t imagine the federal right to abortion coming back in her remaining years or even within the lifetimes of these babies being born in Mississippi, Alabama, and the dozen other states where abortion was banned. Eradicating Roe, she thought, was only the beginning for the antiabortion forces. “If anyone thinks they’re going to stop there, they’re crazy,” she said. “They’re predators, and we’re the prey.”
Building clinics was the only way to keep her sanity in this new reality, she thought. Along with Las Cruces, she opened a clinic in Illinois, another safe haven state. She moved a decades-old clinic over the border from Bristol, Tennessee, to Bristol, Virginia. The move was less than a mile, but it meant the difference between a near-total ban and abortion being legal until twenty-six weeks and six days.
Derzis intended to keep up the fight. But she knew that the newly motivated abortion-rights coalition was playing catch-up to an opponent that thought in terms of generations. Fundamentally, her movement—and the America it represented—had been outplayed. A right that had belonged to American women for half a century was gone. The country had been transformed, and the future was uncertain.
“We’ve given this right back,” she said. “This was ours to keep, and we didn’t do that.”
If anyone understood just how strong faith and persistence made their opposition, it was Derzis. Wherever the Pink House went, its opposition would follow. Already antiabortion activists had leased space across the arroyo to open a pregnancy center that opposed abortion and contraception, and that offered free ultrasounds and assistance for mothers.
One day not long after the Supreme Court ruling, several hundred antiabortion activists fanned out over the parking lot to protest the new abortion clinic in the blazing early evening heat. They set up American flag lawn chairs and sold crosses in “MEMORY of the UNBORN.” There was a Republican state senator, a Catholic priest, and the director of the new pregnancy center, Mark Cavaliere, another one of the movement’s many foot soldiers.
He went to the microphone and looked beyond the crowd to the pink setting sun.
“If ever there was a place to respond to a challenge like we’re facing, it’s the City of the Crosses,” he said. “We’ve seen what God can do.”