On June 24, in Dobbs v. Jackson, the U.S. Supreme Court ruled that women do not have a constitutional right to abortion.
The Dobbs ruling is out of step with public sentiment. National surveys conducted by NPR and CBS this week, by Fox News last week, and by Pew last month found that 56%, 59%, 63%, and 61% of Americans, respectively, support Roe v. Wade. Those are remarkably consistent numbers. Most Americans believe that women should have a constitutional right to abortion, even if we disagree on the details (as noted in my earlier newsletter).
Dobbs is also grounded in fallacious statistical reasoning. I'm not a constitutional scholar, so if I say that I agree with the dissenting justices that the Fourteenth Amendment applies to abortion, you shouldn't trust me any more than you should trust any other lay person with an opinion. However, the statistical fallacies in Dobbs are clear, and worth remembering if you are, for example, encouraging political leaders to pass state and national laws that support access to abortion.
In this newsletter I'll be examining two of the Court's most fundamental claims in Dobbs: 1. Abortion rights are not deeply rooted in American history. 2. Dobbs is a neutral decision that empowers women in each state to decide for themselves on how to regulate abortion.
1. Deep roots?
According to all 9 justices, the sole or main reason the majority voted to overturn Roe is that American history doesn't contain sufficient precedent for it. That is, they felt that Roe wasn't constitutional in the first place. Writing on behalf of the majority, Samuel Alito summed it up like this:
"The Court finds that the right to abortion is not deeply rooted in the Nation's history and tradition."
The term "rooted" is not just a metaphor. The Court emphasizes multiple times in Dobbs that the Fourteenth Amendment doesn't protect a right unless it can be shown to be "rooted" in our history and tradition.
But what would it mean for a right to be "rooted" (or "deeply rooted")? Ultimately, the Court treated this as a question about how you translate numbers into plain English. Evidence for lack of rootedness offered by the majority consisted of statements like these:
"Until a few years before Roe, no federal or state court had recognized such a right [to abortion]".
"By the time the Fourteenth Amendment was adopted [in 1868], three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided."
In other words, the claim that abortion rights aren't deeply rooted in our history was based on numerical facts such as zero courts recognizing a right to abortion, or 3/4 of states criminalizing abortion at one point in time. This is a mistranslation of statistics into plain English. I say this for two reasons:
(a) As the dissent points out, early American law did, in fact, provide support for abortion rights. Briefly, abortion prior to quickening was not considered illegal under American common law. ("Quickening" is the term that describes when a pregnant woman first begins to feel her baby's movement.)
One thing that early American common law, the law under Roe, and the slightly modified law under Planned Parenthood v. Casey (1992) all have in common is that they all specify times when abortion is legal and cannot be prohibited by the states. In common law, this was prior to quickening. In Roe, this was the first two trimesters of pregnancy (although regulation was permissible during the second trimester). In Casey, this was the age of viability – i.e., states could not prohibit abortion before the fetus could survive outside the uterus.
So, wouldn't you conclude from all this, as the dissenting justices did, that the right to abortion, prior to a certain age, is "rooted", or "deeply rooted" in our legal history? The majority justices did not define these terms or provide criteria, though some degree of rootedness seems evident.
This is a classic example of misused statistics. Often, when you translate numbers into plain English, you have to make decisions that aren't purely mathematical, like deciding how many precedents constitute a "deeply rooted" practice. The 6 majority judges, who happen to be ideologically conservative, did not even try to operationally define rootedness, much less count precedents in a systematic way.
At the same time, Justice Alito's observation that 3/4 of the states criminalized abortion at any stage of pregnancy in 1868 is a cherry-picked statistic. At many other points in our history, abortion was legal during the early stages of pregnancy. 1868 is emphasized because this is the year the Fourteenth Amendment was passed, but if you're going to ask whether a practice is deeply rooted in a nation's history, you have to look at the history, not at a single year. (And, as I said, you need to have some criteria for what you're looking for.)
(b) It's clear from Dobbs that apart from the number of precedents, the length of those precedents is important too. Writing for the majority, Justice Alito discussed abortion law going back as far as the 13th century, and he placed much emphasis (too much, according to the dissent) on the legal landscape in 1868.
However, as with the number of precedents, Alito presented no criteria for evaluating the life-span of a precedent. As the dissenting justices noted, Roe has been in place for nearly 50 years, and many women have known nothing else. The dissent could've carried their math a small step further. Our nation will be 246 years old next week. Roe lasted for 49 years. That's 20% of our nation's history. Isn't that "deeply rooted"? How many more years would be needed?
In sum, the argument that abortion rights aren't deeply rooted in our nation's history is weak. The only thing that seems to have taken root here is conflict over abortion rights. Elected state and national leaders may have read the Dobbs decision, or at least summaries of it, and it's important to stress to them, particularly if they're conservative, that the Court's claims about lack of deep rootedness are deeply fallacious.
2. The status of women moving forward
Justice Kavanaugh, in a concurrent opinion for the majority, used words like "neutral" or "scrupulously neutral" to describe the Dobbs ruling, meaning that the Supreme Court is now neutral – in essence, uninvolved – with respect to abortion law. As Justice Alito put it in his summary statement:
"The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives."
The description of Dobbs as neutral is a perfect example of what gives some lawyers a bad name. Dobbs is only "neutral" in the literal sense that it prevents the Supreme Court from deciding whether abortion is legal or not. However, in a practical, real-world sense it's not neutral. For instance, while the Court was working on Dobbs, 13 states had trigger laws in place that would ban abortions within a month or less after Roe was overturned, and 7 states had pre-Roe abortion bans on the books that, in some cases, can now be enforced. In other words, regardless of whatever else the future holds, the passage of Dobbs instantly criminalized abortion in just over a quarter of U.S. states. Justice Kavanaugh's failure to acknowledge this when he used the term "neutral" seems like a case of lying by omission.
Here's an analogy: You could say, truthfully, that when you lift a bottle and then let go of it, you don't cause it to fall, because letting go of it is a neutral act. Gravity is what causes it to fall. Even so, you knew it would fall when you released it, because gravity is always present. Thus, if you drop an unopened bottle of wine that you're about to purchase, you'll be responsible for paying for it. If you blame gravity, the cashier will think you're stupid. Or lying.
In short, the passage of Dobbs was not a neutral act. It's responsible for abortion bans in 13 states, and it will contribute to the enforcement of restrictive laws in other states as well as the passage of new, similarly-restrictive laws.
There's also a broader sense in which the majority treated Dobbs as "neutral". Their view seems to be that states will now make the decisions they should've always been empowered to make, and society, including women, will be fine. Justice Alito, writing for the majority, put it like this:
"Our decision returns the issue of abortion to [state[ legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so. In the last election in November 2020, women, who make up around 51.5 percent of the population of Mississippi, constituted 55.5 percent of the voters who cast ballots."
This is an interesting statement, because it illustrates two classic pitfalls in the use of statistics: (i) failure to provide adequate context, and (ii) cherry-picking data in support of pre-existing beliefs.
Regarding context, Justice Alito's statement suggests that now that the Supreme Court is no longer involved, women can help create the abortion laws they want by participating on equal footing in the legislative process. This is false, owing to the trigger laws I mentioned earlier, and to some missing statistical context about gender differences in state legislatures. Bear with me a moment and I'll fill in that context.
I've seen claims that states with fewer women in their legislature have stricter abortion laws, but I haven't found any supporting data, so I ran the numbers myself. Here's where I got them:
First, the National Conference of State Legislatures tracks how many women serve as state legislators (members of state senates and houses or assemblies). For example, NCSL data tell us that in 2022, 30.7% of state legislators are women, up from 25% in 2018.
Second, the Guttmacher Institute generates a widely-cited scoring system for the strictness of abortion laws within each state. Each state is given a score ranging from -6 to +6 based on their policies related to a total of 12 abortion-restrictive or supportive practices (see here for a description of their methods.)
Putting these numbers together is crude, methodologically speaking, because legislators and legislation change over time, and the impact of each legislator varies. With these caveats in mind, I ran simple, zero-order correlations on three years of data (fortunately, both organizations provide state-level data in spreadsheet format), looking at both same-year data as well as up to a three-year lag between proportions of women in each state legislature and that state's abortion law scores. I found significant correlations of at least .52 in every case.
In short, the results of my correlational analyses show that states with fewer women in their legislature have more restrictive abortion laws. This finding could be interpreted in several ways. It could mean that the more men there are in a state legislature, the more restrictive the abortion laws are in that state. A different interpretation would be that in more conservative states, abortion laws are more restrictive, and women are less likely to run for office and/or be elected. Other interpretations are possible.
Whichever interpretation you choose, it's clear that returning the issue of abortion to state legislative bodies is not a neutral act. Women are underrepresented in such bodies (30.7% nationwide), and the extent of their underrepresentation is greater in states where abortion laws are already stricter. This is a small statistical window into a gender difference in political power that still exists in our country.
Justice Alito's comment that 55% of Mississippi voters in the 2020 election were women is just another example of statistical cherry-picking. Here's another statistic: In 2022, only 16.7% of legislators in Mississippi are women. So yes, it's encouraging that women in Mississippi turn out to vote in state elections, but they're mostly choosing among men.
Finally, Justice Alito's comment that "Women are not without electoral or political power" provides another illustration of why some people resent lawyers. Of course women are not "without" such powers. They have some. The problem is that their power is not equal to that of men. The Dobbs ruling helps ensure that this will continue to be the case.
Concluding remarks
What I've written here barely scratches the surface of what statistics tell us about the impact of abortion laws. For example, if you're not familiar with it, check out The Turnaway Study, which provides direct evidence that restricting access to abortions damages the financial, physical, psychological, and family well-being of women. (What's special about this ongoing longitudinal study, involving nearly a thousand women, is that it relies on an experimental design that contributes to the persuasiveness of the findings.)
The law that the Supreme Court reviewed in Dobbs v. Jackson was grounded in a number of "facts", including the observation that apart from the U.S., only 6 countries permit elective abortion beyond 20 weeks gestational age. This statistic was intended to show that America is an outlier, a view also pushed by the Court's majority justices. However, as with most statistics, this one is misleading without context. Many countries support widespread exceptions to their abortion restrictions that take into account the mother's mental and physical well-being as well as her life circumstances. In addition, many countries help cover the cost of abortions and otherwise make access easier. And, as the dissenting justices noted:
"more than 50 countries around the world...have expanded access to abortion in the past 25 years. In light of that worldwide liberalization of abortion laws, it is American States that will become international outliers after today."
This is something to keep in mind if you take time to encourage state and national leaders to pass laws supporting access to abortions.
Oh, and yes, the dissenting justices used the statistical term "outliers" correctly.
Thank you for your comment. I agree with you that restrictions in some states will lead to increased access in others. Illinois, for example, is already taking steps to open new clinics and increase staff, given that abortion bans in four neighboring states have just taken effect. As for a constitutional amendment, that would at least create more judicial stability. The Dobbs decision shows that liberal justices do believe the 14th Amendment applies to abortion, whereas conservative justices (excepting John Roberts) do not, so one might predict that as the composition of the court changes over time, so the constitutionality of abortion will change too. I think that both liberals and conservatives would agree that this kind of instability, for this particular issue, is a problem.
What are the statistics on the states that will increase access? Won't that counterbalance the side you took on restrictions. I see a one sided statistical review here on restrictions but nothing on increased access as many states will increase access like California, Oregon, New Mexico, Yew york, etc. Also there is a process for changing this but simple public sentiment is not all that is needed, it is an amendment just as was done with prohibition.