The Improbability of Dobbs
[Today’s post is by Acyutananda. Read more of his thoughts on his blog: No Termination Without Representation]
The March for Life takes place every year approximately on the anniversary of the Roe v. Wade decision. For forty-nine out of the fifty-two marches so far, the main actionable demand was the overturning of Roe v. Wade. Only in 2023, 2024, and now 2025 was Roe v. Wade already in the dustbin of history, and did the March focus on mourning Roe’s millions of past victims and on seeking progress beyond Dobbs.
Seeing the photos and videos of yesterday’s March has me reflecting once again on the glaring unlikelihood of the Dobbs v. Jackson Women’s Health Organization judgment.

That the overturning of Roe v. Wade really happened in spite of the extreme improbability of it all fills me with awe. In the course of an epic forty-nine-year struggle, the cause had come to seem hopeless. Those years had been a long chronicle of “near misses”, with hope always followed by heartache. Millions of people, at least if we count everyone in the crowds attending the March for Life each year, had sacrificed their comfort to make known their anti-abortion convictions. And millions of hours must have gone directly into efforts on the legal front. The main pro-life legal strategy was always to fight the fire of the hyper-activist and Constitution-rewriting 1973 Court with the fire of a pro-life Court. But many pro-lifers had come to believe that all the supposedly pro-life political leaders on whom the attainment of a truly pro-life Court depended were merely playing them for their votes, and that to keep those votes coming, no one in Republican leadership really wanted Roe to be overturned.
The most crushing “near miss” came fifteen years after Ronald Reagan attempted in 1987 to elevate to the Court Robert Bork, a strong pro-lifer and Constitutional originalist. When Bork was defeated, Reagan turned to Anthony Kennedy. Kennedy was, like Bork, widely expected to vote against Roe whenever the chance might come, but in the end he lacked Bork’s strong convictions, and in the 1992 Planned Parenthood v. Casey, he dashed pro-lifers’ hopes, joined by Harry Blackmun, John Stevens, Sandra Day O’Connor, and David Souter, appointed respectively by Presidents Nixon, Ford, Reagan, and George H.W. Bush.
Nevertheless thereafter, for twenty-nine years, seemingly thankless work, with no end in sight, continued to be done by single-minded people. In this war of attrition, the women of SBA Pro-Life America stood out for their hard-nosed politics. Mississippi and other states stood ready to try once again to enact pro-life laws, but didn’t detect any real opportunity. Then:
1. A long-time Senate institutionalist with the deepest respect for Senate traditions decided that on one particular occasion, the end nevertheless justified the means.
Conservative icon Justice Antonin Scalia died unexpectedly, and in January 2016 President Obama nominated Merrick Garland to replace him. Mitch McConnell, Senate Majority Leader, took the surprising step of declaring that no nomination should be made in a general-election year (even early in the year), and refused to bring the nomination to a vote. Had McConnell behaved as one would have expected an institutionalist to behave, and had Garland been confirmed to the Court (instead of Neil Gorsuch once Trump took office), history would have been far different.
2. By election day 2016, the betting odds against Donald Trump were 6-1, and that was hardly surprising, considering all the strikes against him as a candidate. Now, other Republican presidential hopefuls as well might have promised, as Trump did, to nominate for the Supreme Court only candidates approved by the Federalist Society, but if the past was any guide, others would probably have caved in, in the face of the opposition met by Brett Kavanaugh (because of allegations against him) and by Amy Coney Barrett (because of McConnell’s blatant inconsistency between her case and that of Garland about the timing of confirmation hearings). So Trump as president was a necessary part of the successful confirmations, and Trump’s election was very improbable.
3. In the thick of things during the Kavanaugh hearings, Michael Avenatti and Julie Swetnick suddenly grabbed the spotlight with some lurid new allegations by Swetnick against Kavanaugh. But Republicans quickly seemed to find success in identifying apparent contradictions between sworn claims submitted by Swetnick to the Judiciary Committee, and subsequent statements made to the news media by Swetnick and Avenatti. Some sniping between Swetnick and Avenatti also leaked out to the public. The allegations thus became completely discredited.
Some Republican staffer labeled that unexpected development “manna from heaven”. Not only did the allegations by Swetnick appear preposterous and clumsy, but Avenatti (representing Stormy Daniels) was already engaged in a legal fight with Trump, so anyone might have concluded that Swetnick’s allegations were purely a political hit job. And not only Swetnick’s allegations . . . the very credible allegations that had been leveled against Kavanaugh by Christine Ford could now be painted with the same brush. Thus for the final vote on the confirmation, cover was afforded to Republican senators who wished to think of Kavanaugh as simply “innocent until proved guilty”.
4. When, three-and-a-half years after Kavanaugh’s confirmation, the Dobbs decision showing Kavanaugh to be with the pro-life majority got leaked, both Sen. Susan Collins and Sen. Joe Manchin claimed that Kavanaugh had misled them and that they would not have voted to confirm him had he not misled them. Some pro-choice observers suspected that that claim on Collins’s part was just her way of staying in favor with Maine pro-choice voters and that she had wanted Roe overturned all along. Whatever actually happened, those two senators’ votes for him were improbable in the light of such statements by them afterwards. The vote of only one of the two was enough for Kavanaugh to be confirmed, but it looked to me as though Manchin might not have gotten on board at the last minute if he had held the final key to the decision; while because Collins had already voted to confirm, Manchin could vote so as to please the pro-lifers in West Virginia and yet not receive the full blame from his fellow Democrats for the final outcome.
5. Ruth Bader Ginsburg was a great champion of some great causes, but not of our pro-life cause. When she passed away, then-President Trump moved quickly and on September 26, 2020 nominated the pro-life Amy Coney Barrett to replace her. The upcoming general election was scheduled for November 3, 2020. Thus there was a window only for an unusually rushed confirmation process before, as seemed likely, there might be a new president-elect who would not at all favour a pro-lifer. Ginsburg’s death just at the start of that window was quite improbable, considering that she had for years until that moment somehow survived one hospitalization after another in her contest with cancer. Moreover, though many had urged her to retire while Obama was still president, she had elected not to do so.
6. Only after the ascension, to the Court, of Barrett did Lynn Fitch, Attorney General of Mississippi, write an argument for Mississippi’s new fifteen-week limit on abortion that called for the overturn of Roe. Before Barrett had been on the court, Fitch’s argument had wisely been a cautious one aimed at optimizing the chances of the Court’s upholding the fifteen-week limit (while otherwise leaving Roe intact). In spite of the obvious change of circumstances with Barrett now on the court, it was not at all guaranteed that Fitch would take the unusual step of changing her argument in midstream. Pro-lifers waited in suspense to see if she would dare do that. It seemed less than probable, but she did it. (Even had she not proposed overturning Roe, the court could theoretically have overturned it, but doing so would have carried with it a stronger and unwanted flavor of judicial activism, and there might not have been five justices who had the stomach for that.)
If any one of the above occurrences had failed to occur, we would likely still be stuck with Roe. In a universe where improbable things do occur, but rarely, for improbabilities to pile on improbabilities in this way is rare indeed. It was a stroke of wondrously good luck for, eventually, millions our small-size sisters and brothers. We too should feel appropriately grateful.
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