Later this year or early next, the Supreme Court is set to hear Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi state law that bans most abortions conducted after 15 weeks of pregnancy. This case is likely to undo or at the very least weaken the core holding of Roe v. Wade and Planned Parenthood v. Casey: that the Constitution protects the right to abortion care until the point of fetal viability.
Getting Dobbs before the Court is the culmination of a decades-long project by the right, which has made uncompromising anti-choice politics a wedge issue to recruit voters and fuel the broader conservative movement. With victory in sight, many of the amicus briefs filed in support of Mississippi’s law reflect just how entrenched this dogma has become in conservative politics: Americans, these groups repeatedly urge the justices, have rejected Roe and want it to be overruled.
Except that’s not true. It’s not even remotely true. Americans are consistently in favor of maintaining the right to abortion care: 59 percent of respondents say abortion should be legal in all or most cases, per a Pew Research Center survey conducted earlier this year; 39 percent say it should be illegal under those same circumstances. A recent Gallup poll found that 58 percent of Americans oppose overturning Roe, and only 32 percent support that result. For all the conservative vitriol directed at Roe over the past five decades, its result remains popular.
But you wouldn’t know it from diving into the right-wing media ecosystem urging the Supreme Court to toss Roe. An amicus brief filed by the Ethics and Public Policy Center, a conservative think tank, declares that “a great many Americans have refused to accept the legitimacy of Roe and Casey.” Judicial Watch asserts that “nearly everyone agrees that the legal foundation for Roe v. Wade was pure fiction.” The Priests for Life laud a “steady flow of new pro-life bills” at the state level as evidence that people “reject the radical and extreme terms” of Roe and Casey. The Catholic Bishops back their assertion that “it is hard to identify anyone today who defends Roe on textual or historical grounds” by quoting two law review articles that say that no one defends Roe on those grounds. Rigorous legal scholarship, this is not.
These proclamations are positively Ph.D.-worthy compared to the brief filed by Intercessors for America, though, which cites a LifeNews article warning that scientists “use scalps from aborted babies to create ‘humanized mice,’” echoing a wild, oft-repeated conspiracy theory that abortion providers are getting rich selling fetal parts. Such claims have been investigated and debunked, but that doesn’t stop them from appearing in an amicus brief before the land’s highest Court.
Broad assertions about Roe’s unpopularity often rely on a conservative sleight-of-hand about the questions being asked. When people are asked if they are pro-choice or pro-life, for example, the gap narrows: 49 percent identify as the former and 47 percent as the latter, per the Gallup poll. Similarly, 47 percent of people say they think abortion is “morally acceptable,” and 46 percent believe it is “morally wrong.” Again, however, when asked about the legality of abortion, the numbers diverge: 48 percent of respondents say abortion care should be legal under certain circumstances, 32 percent say under any circumstances, and only 19 percent under no circumstances. Whatever people’s personal feelings about the morality of abortion care, their support for preserving the right to choose to obtain abortion care remains strong.
Although amicus briefs are indeed a place for policy arguments, there are actually rules on what such briefs should cover. The Supreme Court’s own rule states that an amicus brief that “brings to the attention of the Court relevant matter not already brought to its attention by the parties” may help the Court’s deliberation process. By contrast, a brief “that does not serve this purpose burdens the Court, and its filing is not favored.” It’s unclear how misleading statements about basic demographic support for Roe or lurid lies about the sale of baby parts assist the justices in making their decision.
Of course, both Mississippi and the amicus curiae don’t need to convince the rest of the world; they only need to convince a majority of justices on the Court, several of whom have already indicated considerable degrees of skepticism of Roe. In 2006, Justice Amy Coney Barrett signed a newspaper ad noting her opposition to “abortion on demand”; as The New York Times reported, another part of that ad, though not signed by Barrett, quoted Justice Byron White’s characterization of Roe‘s holding as “an exercise of raw judicial power.” A Court stocked with six uncompromising conservatives steeped in the anti-choice movement is the biggest threat to Roe since it was decided. When the Court decides Dobbs, the only real drama may come from whether Chief Justice John Roberts joins his conservative colleagues in overturning Roe, or whether his performative zeal for maintaining whatever institutional legitimacy the Court still has prompts him to cast an irrelevant fourth protest vote to uphold it.
In an era of a conservative supermajority, the right’s insistence on the unpopularity of Roe is a form of asymmetric warfare: It’s hard for pro-choice advocates to make cogent legal arguments against points that have nothing to do with law. Instead, conservative activists are engaged in a sort of in-group signaling with their counterparts on the bench, laundering talking points using the trappings of appellate procedure. These groups have been mainlining anti-choice bombast for so long that they really have become convinced that “nearly everyone” agrees with them. If they can persuade five justices, the fact that they’re wrong will suddenly be irrelevant.