Opinion | Elizabeth Warren and Tina Smith: Roe Is Gone but the Fight Has Just Begun

The Supreme Court has spoken: Roe is gone. But the Supreme Court doesn’t get the final say on abortion. The American people will have the last word through their representatives in Congress and the White House.

With its decision in Dobbs v. Jackson Women’s Health Organization, an extremist Supreme Court has overturned nearly 50 years of precedent, stripping away the constitutional right to an abortion and ruling that the government — not the person who is pregnant — will make the critical decision about whether to continue a pregnancy. At least nine states have already banned abortion; over a dozen more could soon follow suit by severely restricting or outright outlawing abortion, putting the lives, health and futures of girls and women at risk.

If we sound angry and alarmed, that’s because we are. This decision is devastating — and we have seen what happens next. We both lived in an America where abortion was illegal. A nation in which infections and other complications destroyed lives. A nation in which unplanned pregnancies derailed careers and livelihoods. A nation in which some women took their own lives rather than continue pregnancies they could not bear.

But we must hold on to hope. Each of us can and should act — both elected officials and everyday Americans. We can start by helping those who need access to an abortion. Support Planned Parenthood and other organizations that are expanding their services in states where abortion is available. Contribute to abortion funds. Encourage state legislators to protect reproductive rights in states like New Mexico and Minnesota that border places where abortion services will most likely be severely restricted and even criminalized. Encourage employers in states with abortion bans to give their employees adequate time off and money for travel to find the abortion care they need. Do all you can — and demand the same all-you-can approach from all of our elected leaders.

Earlier this month, along with Senator Patty Murray and half the Senate Democratic Caucus, we sent a letter to President Biden outlining executive actions he could take to defend reproductive freedom. These actions include increasing access to abortion medication, providing federal resources for individuals seeking abortion care in other states and using federal property and resources to protect people seeking abortion services locally. We need action, and we need it now.

On Friday, with the release of the Dobbs decision, we entered a perilous time that threatens millions of women across this nation. We urge the president to declare a public health emergency to protect abortion access for all Americans, unlocking critical resources and authority that states and the federal government can use to meet the surge in demand for reproductive health services. The danger is real, and Democrats must meet it with the urgency it deserves.

We’re in this dark moment because right-wing politicians and their allies have spent decades scheming to overrule a right many Americans considered sacrosanct. Passing state laws to restrict access to abortion care. Giving personhood rights to fertilized eggs. Threatening to criminalize in vitro fertilization. Offering bounties for reporting doctors who provide abortion services. Abusing the filibuster and turning Congress into a broken institution. Advancing judicial nominees who claimed to be committed to protecting “settled law” while they winked at their Republican sponsors in the Senate. Stealing two seats on the Supreme Court.

For nearly 50 years, right-wing extremists rejected the beliefs held by an overwhelming majority of Americans. They doubled and redoubled their efforts to create a future in which women and their doctors could face a prison sentence for seeking or providing basic health care. When these extremists couldn’t impose their radical views through the legislative process, they stacked the courts. And now that the Supreme Court has opened the door by overturning Roe, Republicans will continue their assault on our civil rights and liberties.

Former Vice President Mike Pence called for a national ban on abortion in all 50 states; Mitch McConnell, the Senate minority leader, flat out stated that it’s a possibility. And the logic laid out by the majority in Dobbs seems to undercut other precedents, raising the alarming possibility that we could soon see an assault on privacy and marriage equality.

In order to fix the damage Republicans have done to our system in their efforts to control women’s lives, we need broad democracy reform: changing the composition of the courts, reforming Senate rules like the filibuster, and even fixing the outdated Electoral College that allowed presidential candidates who lost the popular vote to take office and nominate five of the justices who agreed to end the right to an abortion.

We can’t undo in five months the damage it took Republicans five decades to accomplish, but we can immediately start repairing our democracy. The public is overwhelmingly on our side. A vast majority of Americans oppose the decision the Supreme Court just made. Nearly two-thirds of Americans believe that abortion should be legal in all or most cases. And more Americans describe themselves as pro-choice today than at any other point in the last 25 years.

Let’s be clear: Roe may be gone, but the protections it once guaranteed are on the ballot. States like Kansas and Kentucky have initiatives to strip away state constitutional protections for abortion, while Michigan and Vermont are working toward statewide votes to create constitutional protections for reproductive freedom. But make no mistake, this radical decision affects all Americans, not just those in states where the right to a safe, legal abortion will soon fall.

Now is the time to demand that every single candidate for every single office voice a firm position on reproductive rights. Ask every Senate candidate to commit to reforming the filibuster rules, so that the chamber can pass federal legislation protecting the right to reproductive freedom. If voters help us maintain our control of the House and expand our majority in the Senate by at least two votes this November, we can make Roe the law all across the country as soon as January.

Simply put: We must restore our democracy so that a radical minority can no longer drown out the will of the people. This will be a long, hard fight, and the path to victory is not yet certain. But it’s a righteous fight that we must win — no matter how long it takes. The two of us lived in an America without Roe, and we are not going back. Not now. Not ever.