E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein

As of November 30, 2025, the U.S. Supreme Court has not overturned the constitutional right to same‑sex marriage. Obergefell v. Hodges (2015) remains binding precedent, and the Court recently declined to hear a case (Davis v. Ermold) that explicitly asked it to overturn Obergefell, rejecting the petition without comment and leaving nationwide marriage equality in place.(apnews.com)

Likewise, the Court has not overturned the constitutional protections for contraception established in Griswold v. Connecticut and its progeny; those decisions are still good law. Justice Clarence Thomas’s Dobbs concurrence did call for reconsidering Griswold (contraception) and Obergefell (same‑sex marriage), but the Court has not acted on that suggestion, and Griswold’s recognition of a constitutional right for married couples to use contraception remains in force.(washingtonpost.com)

There is also no national legal regime outlawing contraception. Federal law does not ban contraceptives; instead, Congress has seen repeated efforts to protect access via the Right to Contraception Act and related bills, and the FDA continues to approve and even expand over‑the‑counter contraceptive options. Access has become more fragmented, with many residents in states that restrict or complicate contraceptive access, and federal and state policies have reduced funding or coverage in some contexts, but these are not a nationwide prohibition.(guttmacher.org)

Because (1) Obergefell and the core constitutional protections for contraception remain intact, and (2) no nationwide legal ban on contraception has emerged, Sacks’s prediction is substantively correct as of the current date.

The “then-pending” higher-education affirmative action case in 2022 refers to Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. On June 29, 2023, the U.S. Supreme Court held that the race-conscious admissions programs at Harvard and UNC violate the Equal Protection Clause of the Fourteenth Amendment, ruling those affirmative action policies unconstitutional. (supreme.justia.com)

News and institutional summaries consistently describe this as the Court striking down or rejecting affirmative action in college admissions, effectively ending the use of race-conscious admissions policies of the type at issue nationwide. (news.harvard.edu)

Because Chamath predicted that the Supreme Court would strike down affirmative action policies in that higher-education case, and the Court in fact did so in its 2023 decisions, the prediction was right.

The prediction described a possible outcome in which Chief Justice Roberts would “peel off a vote” so that:

1. Roe v. Wade would be upheld, and
2. It would be modified to allow restrictive state laws like Mississippi’s 15‑week ban.

What actually happened in Dobbs v. Jackson Women’s Health Organization on June 24, 2022 was:

• The Supreme Court upheld Mississippi’s 15‑week abortion ban.
• A 5–4 majority explicitly overturned Roe v. Wade and Planned Parenthood v. Casey, holding that the Constitution does not confer a right to abortion.
• Chief Justice Roberts concurred only in the judgment to uphold Mississippi’s law but did not join the portion of the opinion that overturned Roe and Casey; he proposed a more limited ruling that would stop at upholding the 15‑week ban while not fully overruling Roe/Casey, and he did not attract an additional vote to that position.

Because no justice joined Roberts in a compromise position and Roe was not upheld in any form, the scenario the predictor treated as still possible — Roe upheld but modified to allow laws like Mississippi’s — did not occur.

Therefore, the prediction is wrong: the specific outcome he floated never materialized, and Roe v. Wade was overturned instead.

1. Condition met: Roe overturned along lines of leaked Alito draft. On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, explicitly overruling Roe v. Wade and Planned Parenthood v. Casey and returning abortion regulation to “the people and their elected representatives.” Analyses note the final majority opinion was substantially similar to the earlier leaked Alito draft. (en.wikipedia.org)

2. Democrats in Congress attempted to codify Roe. The Women’s Health Protection Act (WHPA), designed to enshrine Roe/Casey-style abortion protections in federal statute, passed the House in September 2021 (218–211) and again on July 15, 2022 (219–210) after Roe was overturned. (en.wikipedia.org) These were explicit attempts by congressional Democrats to “codify Roe” in federal law.

3. Those efforts failed due to lack of votes to overcome/eliminate the Senate filibuster. In the Senate, WHPA failed on key cloture/advancement votes. On May 11, 2022, the bill to codify abortion protections received 49–51, far short of the 60 votes needed to overcome a filibuster. (wboi.org) President Biden later publicly supported a filibuster exception to codify Roe, but Senators Manchin and Sinema maintained their opposition to changing filibuster rules, and Biden acknowledged Democrats did not have the votes to alter the filibuster. (washingtonpost.com) No federal law codifying Roe has been enacted since.

4. Post-Roe, abortion policy has defaulted to state control in practice. The Dobbs majority expressly stated that Roe and Casey are overruled and that “the authority to regulate abortion is returned to the people and their elected representatives,” with the decision “devolving to state governments the authority to regulate any aspect of abortion that federal law does not preempt.” (en.wikipedia.org) After Dobbs, a patchwork of state laws emerged: some states implemented near-total bans via trigger laws or revived old statutes, while others protected or expanded access, confirming that abortion policy is now largely determined at the state level absent a federal codification. (en.wikipedia.org)

Taken together, the predicted sequence occurred: Roe was overturned along the lines of the draft; Democrats tried and failed to codify Roe because they lacked the votes to overcome or scrap the filibuster; and in the aftermath, abortion regulation has effectively defaulted to state control. Hence the prediction is right.

The prediction was that, after Roe was overturned, the U.S. would roughly sort into three groups: (1) about half the states with little/no change in abortion access; (2) about 12 states where pre‑existing trigger or other restrictive laws would immediately take effect; and (3) roughly a dozen remaining purple states where abortion became a major legislative and electoral battleground.

What actually happened closely matches this structure:

1. States with little or no new restriction (roughly half the country).

   • In the year after Dobbs, analyses noted that abortion "remains legal and protected" in about 20 states, largely on the coasts and some upper‑Midwest states, with that number growing to about 29 states plus D.C. by late 2024 as more blue or blue‑leaning states added statutory or constitutional protections (e.g., CA, NY, WA, CO, IL, VT, MI, etc.).
   • These are predominantly Democratic‑leaning states where the end of Roe did not reduce access; many actually expanded protections, but in terms of restrictions imposed on residents his claim of “about half the states” seeing no new ban is directionally accurate.

   Sources describe 20 states with legal and protected abortion one year post‑Dobbs and later 29 states plus D.C. with abortion legal and protected while bans cluster elsewhere, i.e., roughly half or more of states maintaining access. (newswise.com)

2. States where pre‑existing bans or trigger laws quickly took effect (≈12 states).

   • Before the decision, the Guttmacher Institute identified 13 trigger‑ban states whose laws were designed to take effect automatically or by rapid state action if Roe fell (AR, ID, KY, LA, MS, MO, ND, OK, SD, TN, TX, UT, WY).(guttmacher.org)
   • After Dobbs in June 2022, those trigger bans (plus some revived pre‑Roe bans) rapidly went into force, and by late 2022–2023, around 14 states were enforcing total or near‑total abortion bans, overwhelmingly in the South and interior.(guttmacher.org)
   • That is essentially the group Sacks described as “about 12 states” where “restrictions that are already on the books are going to go into effect,” and his order‑of‑magnitude is very close to the actual 13 trigger‑ban states.

3. Battleground purple states (≈12–13).

   • Since Dobbs, abortion has become a central contested issue in a band of politically mixed states: Kansas, Kentucky, Michigan, Montana, and Vermont voted on abortion‑related referenda in 2022; Kansas and Kentucky (red or purple) rejected anti‑abortion amendments, while Michigan and Vermont adopted pro‑choice constitutional protections.(en.wikipedia.org)
   • In 2024, 10 states had abortion on the ballot (AZ, CO, FL, MD, MO, MT, NE, NV, NY, SD), many of them classic or emerging purple states (AZ, MO, NV, NE, FL, MT). Seven passed pro‑choice measures; three failed, underscoring how hotly contested policy is in this middle group.(time.com)
   • Media and research summaries repeatedly characterize the post‑Dobbs landscape as a sharp divide between solidly restrictive and solidly protective states, with a remaining tier of states—largely in the Midwest, interior West, and some Sunbelt states—where abortion is the focal point of ongoing legislative fights and ballot campaigns.(theguardian.com)

   The number of such battleground states is not fixed, but the set of states where abortion is the defining policy and electoral issue is on the order of a dozen, in line with his “12 or 13 states that become battlegrounds.”

Because the pattern he forecast—a three‑way split into (a) roughly half of states with continued access, (b) roughly a dozen states where pre‑existing bans immediately bit, and (c) roughly a dozen purple‑state battlegrounds—does in fact describe the post‑Dobbs map reasonably well (even if exact counts and which states fall in which bucket have evolved), this prediction is best classified as right in substance.

Available post‑Dobbs evidence broadly supports Sacks’s prediction that, in a post‑Roe world, state‑level politicians whose abortion positions are closer to the median voter in their state gain an electoral edge over more absolutist positions.

1. Voters have repeatedly chosen policies near the statewide median over absolutist bans. Since Dobbs, voters have backed abortion‑rights or viability‑based measures in a wide range of states: Kansas rejected a constitutional amendment that would have allowed near‑total bans by ~59–41 in 2022, with the pro‑rights side winning in every congressional district, including deep‑red ones.(en.wikipedia.org) Kentucky voters likewise defeated a 2022 amendment stating there is no constitutional right to abortion.(rasmussenreports.com) In 2022 and 2023, California, Michigan, Vermont and then Ohio approved constitutional protections for abortion up to viability, often by double‑digit margins even in states that lean Republican in federal races.(kff.org)(en.wikipedia.org) In 2024, voters again adopted viability‑oriented or broad abortion‑rights amendments in Arizona, Colorado, Maryland, Montana and Nevada,(en.wikipedia.org)(en.wikipedia.org)(en.wikipedia.org)(en.wikipedia.org)(en.wikipedia.org) while an abortion‑rights measure in Florida still drew 57% support despite failing the 60% supermajority requirement.(en.wikipedia.org) The main exception, Nebraska, saw voters choose a relatively less absolutist restriction—a constitutional ban after the first trimester with rape/incest/medical‑emergency exceptions (Initiative 434) over a broader rights‑to‑viability measure (Initiative 439)(en.wikipedia.org)(en.wikipedia.org)—still consistent with voters gravitating toward a perceived middle ground for that very conservative state.

2. Politicians visibly tied to hardline positions have been punished, while those closer to state opinion have done better. In Kentucky, Democrat Andy Beshear won reelection governor in 2023 by over 5 points in a deep‑red state; reporting credits a viral ad highlighting that Republican Daniel Cameron had backed a near‑total ban with no rape or incest exceptions as a key factor in Cameron’s loss, even Kentucky GOP leaders acknowledged its impact.(en.wikipedia.org) In Virginia, Governor Youngkin and legislative Republicans framed a 15‑week ban with exceptions as a "consensus" limit, but polls showed voters split on that policy and broadly seeing GOP abortion positions as too restrictive or "extreme";(theguardian.com)(washingtonpost.com) Democrats ran squarely against new restrictions and went on to win full control of the legislature in 2023, blocking Youngkin’s proposal—analyses explicitly linked GOP losses to their abortion stance.(stateline.org) In red and purple states with abortion on the ballot, Democratic/state‑level pro‑rights candidates systematically ran ahead of generic partisan baselines when their message matched the broadly pro‑Roe preferences revealed by the ballot questions.(kff.org)(judiciary.senate.gov)

3. Quantitative studies find an electoral penalty for hardline anti‑abortion positions, implying a relative advantage for moderation. KFF’s analysis of the 2022 midterms using AP VoteCast found that voters for whom Dobbs/abortion was the most important issue backed Democratic House candidates by about 70–25, and that the Dobbs decision had a "major impact" on turnout and candidate choice for many key groups; this helps explain Democrats’ better‑than‑expected performance, particularly where abortion was salient.(kff.org) A political‑science style analysis of 2022 races estimates that Republican candidates’ pro‑life stance and the Dobbs backlash likely cost the GOP around 1 percentage point nationally, and that, after controlling for incumbency and Trump alignment, candidates who maintained hardline pro‑life positions lost roughly 0.6 points more than relatively more moderate Republicans—small but real margins that matter in close races.(decivitate.jamesjheaney.com) That is exactly the kind of marginal advantage Sacks was pointing to: over time, being closer to voter sentiment on abortion appears to yield electoral gains at the margins, while absolutist positions (especially near‑total bans without broad exceptions) have been electorally costly.

4. Caveats. The effect size is modest, and many other factors (partisanship, Trump, the economy) shape election outcomes. There are also outliers like Nebraska’s relatively strict 2024 amendment(en.wikipedia.org) and ongoing efforts in states like Missouri to roll back voter‑approved abortion‑rights measures(apnews.com). But taken together—ballot‑measure results across ideologically diverse states, high‑salience gubernatorial and legislative races (Kentucky, Virginia, Michigan, Ohio), and quantitative estimates of an abortion‑related penalty for hardliners—the post‑Roe electoral record aligns with Sacks’s claim in direction and mechanism. Politicians whose positions track where “most of the people in their state are” on abortion have, on balance, fared better than those holding uncompromising extremes.

There is clear evidence both for and against Sachs’s prediction, so the overall judgment is mixed rather than definitively right or wrong.

Evidence consistent with the prediction (punishment in contested states):

• In Michigan’s 2022 governor race, Republican Tudor Dixon explicitly opposed abortion exceptions for rape and incest, saying her only exception was to save the mother’s life. She lost to Democratic Gov. Gretchen Whitmer by a wide margin at the same time Michigan voters passed Proposal 3, a constitutional amendment protecting abortion rights, by roughly 57–43%. Analysts explicitly link Dixon’s defeat to her hard‑line abortion position. (en.wikipedia.org)

• In Pennsylvania’s 2022 governor race, Republican Doug Mastriano supported a ban from conception with no exceptions for rape, incest, or even the mother’s life. He lost to Democrat Josh Shapiro by about 15 points in a swing state where the race had been expected to be closer; coverage repeatedly flagged his extreme abortion stance as part of his broader far‑right profile. (en.wikipedia.org)

• In Arizona’s 2022 Senate race, Republican Blake Masters backed a 15‑week ban with no rape or incest exceptions and supported a broad federal “personhood” law. Mark Kelly defeated him 51.4%–46.5%; post‑election analysis notes that Kelly heavily attacked Masters over abortion and that Masters’s stance hurt him, especially with women. (politifact.com)

• In Georgia’s 2022 Senate race, Herschel Walker repeatedly said there was “no exception” in his mind for abortion bans, before trying to walk that back later. He underperformed the more conventional anti‑abortion Republican governor Brian Kemp and ultimately lost the runoff to Raphael Warnock, even as Kemp was easily re‑elected—suggesting voters were less willing to back the more absolutist candidate. (washingtonpost.com)

• Voters also repeatedly rejected very restrictive abortion positions via statewide ballot measures: Kansas (a red state) defeated an anti‑abortion constitutional amendment 59–41 in August 2022; Kentucky voters rejected Amendment 2, which would have declared no state constitutional right to abortion; Michigan, Vermont, and California all voted to enshrine abortion protections; and in 2023, Ohio voters (in a Trump‑leaning state) adopted a constitutional amendment guaranteeing broad reproductive rights. These outcomes are widely interpreted as backlash against abortion bans and particularly against extreme or no‑exception policies. (en.wikipedia.org)

• Polling shows that rape and incest exceptions are overwhelmingly popular, with around 77–79% of Americans supporting legal abortion in those circumstances, underscoring why no‑exception positions are politically vulnerable in competitive environments. (poynter.org)

Taken together, these cases show that in a number of high‑profile, genuinely contested states and races, politicians or campaigns associated with bans lacking rape/incest exceptions either lost badly or saw their positions repudiated at the ballot box—very much in line with Sachs’s expectation about electoral punishment.

Evidence against the prediction (no clear punishment in many states):

• At the same time, many states have enacted or maintained bans with no rape/incest exceptions, and the politicians responsible have largely not been removed from office. Fact‑checking and policy reviews in 2022–23 found that roughly 15 states with new or impending strict abortion laws offered no exceptions for rape or incest (including Alabama, Missouri, South Dakota, Tennessee, Texas and others), and these bans largely remain in force. (politifact.com)

• Texas is a particularly important counterexample. The state implemented a six‑week “heartbeat” ban and then a near‑total ban that explicitly excludes rape and incest exceptions. Gov. Greg Abbott has publicly defended these laws and rejected adding such exceptions, yet he was re‑elected governor in 2022 by about 11 points. Reporting after the election noted that, despite broad public opposition to Texas’s near‑total ban, outrage over abortion access “didn’t translate into enough votes” to stop Republicans from sweeping statewide races—directly contradicting the idea that such politicians are reliably punished even where the policy is hotly contested. (en.wikipedia.org)

• Similar patterns exist in other deep‑red states like Tennessee, Alabama, Oklahoma, and Kentucky, where near‑total bans without rape/incest exceptions (or with extremely narrow, hard‑to‑use exceptions) have taken effect and Republican trifectas have remained intact, with no large‑scale electoral backlash sufficient to change party control. (en.wikipedia.org)

• In some cases, Republican politicians have responded not by being voted out but by moderating their rhetoric. For example, J.D. Vance initially compared abortion to slavery and questioned rape/incest exceptions, then later explicitly endorsed those exceptions while emphasizing that states should set their own rules—suggesting perceived electoral costs for hard‑line positions, but also that politicians can adapt and remain viable rather than simply being "punished" at the polls. (washingtonpost.com)

• Broad 2022 midterm analyses generally agree that Dobbs and abortion rights hurt Republicans overall and helped Democrats avoid a “red wave,” especially in swing states, but they also note that in strongly Republican states such as Texas, the same issue did not prevent GOP victories, even where the underlying policies were highly controversial. (theguardian.com)

Why the outcome is ambiguous:

Sachs framed his claim in general terms—“if the pro‑life side refuses to make compromises for, say, rape and incest, they’re going to be punished by voters in those states.” What we actually see is:

• In competitive or purple states and in direct statewide referenda, no‑exception or very hard‑line abortion positions have often been punished: candidates with such stances have lost major races, and restrictive measures have been defeated.
• In many deep‑red states where abortion is nevertheless intensely contested in public opinion and activism, politicians backing bans with no rape/incest exceptions have so far avoided serious electoral punishment and continue to govern under those laws.

Because significant real‑world evidence points in both directions, and because key terms like “states where abortion policy becomes contested” and “punished” are imprecise (does it mean losing any one race, losing control of state government, or simply facing public disapproval?), the overall verdict on the prediction can’t be cleanly labeled as simply correct or incorrect. The pattern is partially validating Sachs’s logic in swing contexts but clearly not universal, which makes the outcome best characterized as ambiguous.

There is substantial evidence that very strict, no‑exceptions anti‑abortion stances have been an electoral liability for Republicans since Dobbs, which supports part of Sacks’s logic, but the broader, symmetric claim about “absolutists in both parties” generally losing relative to compromisers is not clearly borne out.

After Roe was overturned, abortion became a top voting issue and materially boosted Democrats in 2022. KFF/AP VoteCast found that about half of voters said the Dobbs decision had a “major impact” on which candidates they supported, with those voters breaking heavily for Democrats. Abortion-related ballot measures in 2022 consistently went in the abortion‑rights direction, even in red states like Kansas and Kentucky, where voters rejected constitutional amendments that would have removed or denied abortion rights. In 2023, Ohio voters approved a constitutional amendment protecting abortion rights by a large margin. These results signal broad resistance to maximal abortion bans. (kff.org)

In key statewide races, Republican candidates with very hardline positions (near‑total bans, no rape/incest exceptions) underperformed or lost. Michigan gubernatorial candidate Tudor Dixon, who opposed abortion except to save the mother’s life, lost by more than 10 points in an election where a pro‑abortion‑rights constitutional amendment passed and where analysts explicitly noted that abortion and negative ads about her stance hurt her. Minnesota’s Scott Jensen initially backed a ban with no rape/incest exceptions and had to partially walk it back; the race became heavily about abortion and he lost by a comfortable margin. Post‑election analyses and GOP strategists have repeatedly said Republicans’ “extreme” abortion positions and failure to find a middle ground helped blunt the expected red wave. (en.wikipedia.org)

Republican elites themselves have warned that hardline, no‑compromise positions are costing elections and urged more compromise. Rep. Nancy Mace has repeatedly argued that the GOP’s “extreme” stance on abortion will prevent national victories and that voters want middle‑ground limits with exceptions. Donald Trump has called six‑week “heartbeat” bans a “terrible mistake” and blamed the party’s 2022 underperformance in part on Republicans who “didn’t understand the issue,” while promising to “negotiate” a more broadly acceptable policy rather than championing a national hard ban. Both the Cook Political Report and other analysts describe less‑extreme Republicans as better positioned than hardliners in competitive races. (wjcl.com)

However, the prediction goes further: it says that absolutists in both parties will tend to lose relative to compromisers. On the Democratic side, there is little clear evidence that strong abortion‑rights positions—sometimes labeled “absolutist” by opponents—have systematically hurt candidates; if anything, Democrats who campaigned aggressively on protecting abortion access often overperformed expectations in 2022 and 2023. Polling shows a national majority favoring abortion being legal in all or most cases, with voters trusting Democrats more than Republicans on the issue, and research cautions against assuming Democrats’ abortion stance is electorally “too extreme.” (pewresearch.org) At the same time, many very anti‑abortion politicians continue to win handily in solidly Republican states, where partisanship overwhelms issue‑based punishment.

Because (1) there is strong but not universal evidence that hardline anti‑abortion stances have hurt some Republican candidates after Dobbs, but (2) no comparable, systematic pattern that “absolutist” abortion‑rights Democrats lose relative to compromisers, and (3) many other factors (partisanship, candidate quality, economics) confound a clean comparison, the specific, symmetric claim that absolutists in both parties “will tend to lose elections relative to those who compromise” cannot be cleanly confirmed or falsified. Some elements fit observed trends, but the prediction as stated remains ambiguous given the available evidence.

Roe v. Wade was formally overturned on June 24, 2022, when the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization, holding that the Constitution does not confer a right to abortion and returning regulatory authority to the states.

Following Dobbs, U.S. states rapidly implemented highly divergent abortion-law frameworks:

• Many Republican-led states activated or passed bans or severe restrictions, often with differing contours around gestational limits (e.g., near‑total bans, 6‑week bans, 12‑ or 15‑week limits).
• States varied significantly on exceptions (life/health of the pregnant person, rape, incest, fatal fetal anomaly), sometimes excluding rape and incest, or tying them to narrow evidentiary requirements and reporting deadlines.
• Democratic-led states moved in the opposite direction, enacting protections or expansions of abortion access, including “shield laws” for providers and patients traveling from restrictive states.

The result since mid‑2022 has been a patchwork system widely described by legal scholars, medical groups, and major media as chaotic or confusing:

• Rapidly changing state injunctions and court rulings have repeatedly altered whether particular bans are in force. Providers and patients in states like Texas, Idaho, Alabama, Wisconsin, and others have had to change practices multiple times in response to shifting legal landscapes.
• Physicians report uncertainty and delays in providing care (including miscarriage and emergency pregnancy care) because of unclear or restrictive statutory language and fear of criminal and civil liability.
• Large numbers of patients now travel across state lines to obtain abortions, with access depending heavily on residence and resources, illustrating substantial practical chaos in obtaining care.

More than three years have passed between the podcast (May 7, 2022) and the current date (late 2025). In that period, the post‑Dobbs environment has demonstrably featured exactly what the prediction described: states independently constructing varied, often conflicting abortion-law frameworks and a sustained period of legal and practical chaos around access. Accordingly, the prediction is right.

Sacks’s prediction has largely borne out.

After Dobbs, many Republican-led states enacted near-total abortion bans with no rape or incest exceptions (e.g., Alabama, Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Tennessee, Texas), matching his "no‑compromise" scenario. This hardened stance became a defining feature of the party’s brand on abortion. (kff.org)

Electorally, Republicans have not replicated Youngkin‑style broad victories in competitive states since these bans took effect. In the 2022 midterms—expected to be a GOP “red wave”—Republicans only narrowly won the U.S. House while Democrats gained a Senate seat, an historically strong showing for the party in power. Analyses across major outlets conclude that abortion backlash was a central reason the red wave failed to materialize. (theguardian.com)

In high‑profile statewide races, hardline anti‑abortion Republicans frequently underperformed or lost in states where a Youngkin‑style win might otherwise have been plausible. In Michigan, for example, voters simultaneously passed a constitutional amendment protecting abortion rights and gave Democrats a governing trifecta; Gov. Gretchen Whitmer defeated Tudor Dixon, who opposed abortion in nearly all cases, by a far larger margin than polls suggested. (en.wikipedia.org) Similar patterns appeared in Pennsylvania and Arizona, where Democratic candidates beat Republicans tied to strict abortion positions while making abortion central to their campaigns. (theguardian.com)

Voters have also directly punished no‑compromise positions through ballot measures. Since Dobbs, most state‑level abortion referendums have gone in the pro‑rights direction, including in red states such as Kansas and Kentucky; overall, in 13 of 16 post‑Dobbs ballot measures, the abortion‑rights side has won. (en.wikipedia.org) In 2023, Ohio voters enshrined abortion rights in the state constitution and Virginia voters handed full legislative control to Democrats after Republicans campaigned on new abortion limits—results widely read as further backlash to GOP abortion policy. (en.wikipedia.org)

By 2025, Virginia itself—where Youngkin’s 2021 win had been the model of broad Republican success—swung back decisively to Democrats, who won the governorship and expanded their legislative majority while running in part on protecting abortion rights, ending the GOP era Youngkin had started. (washingtonpost.com) Taken together, the proliferation of uncompromising GOP abortion bans and the consistent electoral and ballot‑measure backlash against them align closely with Sacks’s forecast that “if the parties don’t compromise on this, voters will eventually punish them” and that Republicans would not keep seeing Youngkin‑like victories under a no‑compromise stance.

Evidence since Dobbs shows some clear political costs to Republicans on abortion, but not the kind of broad, overwhelming, long‑term national penalty implied by “massive price,” and the overall partisan balance has recently shifted in their favor.

Evidence for real costs:

• In the 2022 midterms, Republicans badly underperformed historical midterm gains; KFF/AP VoteCast finds about half of voters said overturning Roe had a major impact on which candidates they supported, with those voters breaking heavily for Democrats, especially in key Senate and gubernatorial races in states like Pennsylvania and Arizona. (kff.org)
• A county‑level study of the 2022 election finds that in states with abortion ballot measures, the Republican U.S. House vote margin fell by about 4.8 percentage points relative to prior midterms, enough to plausibly flip dozens of close seats—evidence of a measurable GOP penalty tied to abortion politics in those states. (sciencedirect.com)
• Since Dobbs, every statewide vote framed as expanding or protecting abortion rights in competitive or even red-leaning states (e.g., Kansas 2022, Michigan 2022, Ohio 2023, plus Arizona, Colorado, Missouri, and Montana constitutional amendments in 2024) has passed, while high‑profile efforts to entrench or expand abortion bans have repeatedly failed (e.g., Kentucky 2022, Ohio 2023). (cbsnews.com) This constrains Republican policy options and shows their preferred position is often a policy loser, even among electorates that are otherwise willing to back GOP candidates.

Evidence against a clear, massive long‑term partisan price:

• Despite these headwinds, by 2024 Republicans regained the presidency (Trump defeating Harris), flipped the U.S. Senate to a GOP majority, and held the U.S. House—giving the party full federal governing control for the first time since 2016. (en.wikipedia.org) That outcome is hard to square with the idea that Dobbs inflicted a uniformly “massive” nationwide electoral penalty on the GOP.
• Recent national polling shows the Democratic Party currently has worse favorability numbers than the Republican Party, with Dems’ unfavorables at multi‑decade highs and Republicans slightly less disliked and now leading or competitive on many issue‑trust measures. (nypost.com) If Dobbs had produced a broad, enduring anti‑GOP backlash, you would expect the opposite pattern.
• Public opinion on abortion itself has moved modestly but not dramatically: roughly 6 in 10 Americans now say abortion should be legal in all or most cases, up only a few points from pre‑Dobbs levels, and “pro‑choice” identification has an edge but not an overwhelming one. (pewresearch.org) This puts Republican issue positions out of step with the median voter, but it has not yet translated into consistent, decisive partisan realignment away from the GOP.

Why this is rated ambiguous rather than clearly right or wrong:

• There is good evidence that Dobbs has imposed targeted, sometimes decisive costs on Republicans—especially in swing races, ballot measures, and among key blocs of women and younger voters—and that it remains a structural vulnerability for the party. (kff.org)
• At the same time, by late 2025 Republicans control the presidency and both chambers of Congress, hold or dominate many state governments, and are not suffering uniquely poor favorability compared with Democrats. (en.wikipedia.org) That outcome is inconsistent with the prediction of a clear, sweeping, long‑term national political collapse triggered by overturning Roe.

Given these mixed signals—real but bounded electoral and policy costs versus continued GOP institutional strength and competitive or better national ratings—the net long‑term effect of Dobbs on Republican fortunes is, as of 2025, genuinely unclear. Hence the prediction is best classified as ambiguous, not definitively validated or disproven.

As of November 30, 2025, Obergefell v. Hodges, 576 U.S. 644 (2015), remains binding Supreme Court precedent establishing that same‑sex couples have a fundamental right to marry and that states must license and recognize same‑sex marriages under the Fourteenth Amendment.(law.cornell.edu)

In fact, the current Court recently declined to hear a case (stemming from former Kentucky clerk Kim Davis) that sought to roll back or revisit Obergefell, leaving the decision in place and signaling no present majority to overturn it.(reuters.com)

Separately, Congress enacted the Respect for Marriage Act in 2022, which repealed DOMA and requires federal recognition of same‑sex marriages and interstate recognition by states, further entrenching legal protections for same‑sex marriage, even though the core constitutional holding still comes from Obergefell.(en.wikipedia.org)

Because the Supreme Court has not overturned Obergefell and same‑sex marriage remains constitutionally protected throughout the United States as of the current date, Sacks’s prediction that “I don't think Obergefell is going to get overturned” has, up to now, been borne out. However, some states have passed nonbinding resolutions urging the Court to reconsider Obergefell, showing ongoing political efforts but no change in constitutional law.(them.us)

This prediction is explicitly counterfactual and conditional on a historical event that never occurred: the Supreme Court did not recognize a right to same‑sex marriage in the early 1990s. The actual historical path was:

• Same‑sex marriage recognition at the federal constitutional level came only with Obergefell v. Hodges in 2015.
• No federal constitutional amendment banning same‑sex marriage has ever been adopted; various proposed amendments (e.g., the Federal Marriage Amendment in the 2000s) failed to secure the necessary congressional supermajorities and state ratifications.

Because the claim is: "if the Supreme Court had ... in the early 1990s, we might have had a constitutional amendment banning gay marriage," it is not a falsifiable prediction about the actual world but a hypothetical about an alternative timeline. There is no empirical way to determine whether earlier judicial recognition would have triggered sufficient political support and ratification for such an amendment. Political counterfactuals of this kind cannot be settled conclusively by subsequent real‑world events.

Therefore, even though we know what did happen (no such amendment), we cannot infer what would have happened under the specified alternative conditions. The prediction remains inherently untestable and thus ambiguous, not right or wrong in the usual empirical sense.

As of November 30, 2025, the Supreme Court has not overturned either Obergefell v. Hodges (same‑sex marriage) or Loving v. Virginia (interracial marriage). Both decisions remain binding precedent, and key aspects of Obergefell and Loving are now also codified in the 2022 Respect for Marriage Act, which requires federal and interstate recognition of same‑sex and interracial marriages.​(en.wikipedia.org)

On the certiorari part of the prediction: in Ermold v. Davis (the Kim Davis case), the petitioner explicitly asked the Court not only to review her liability but also to overturn Obergefell. On November 10, 2025, the Supreme Court denied certiorari without comment, leaving the lower‑court judgment (and Obergefell) in place and explicitly refusing to take up that direct challenge.​(en.wikipedia.org) There have been political and advocacy efforts (e.g., an Idaho House resolution) urging the Court to reverse Obergefell, but these are nonbinding and have not produced any granted case aimed at overruling the marriage precedents.​(them.us) Likewise, there has been no Supreme Court case granting certiorari to reconsider or overturn Loving v. Virginia.

Although Justice Thomas has urged the Court, in his Dobbs concurrence, to reconsider substantive due‑process precedents including Obergefell, the Court as a whole has not acted on that suggestion.​(newsweek.com) The Court has heard related religious‑liberty and free‑speech cases involving same‑sex weddings, such as 303 Creative LLC v. Elenis, but those were framed around First Amendment questions and did not ask the Court to overrule Obergefell itself.​(en.wikipedia.org) Taken together, this means the prediction—that the Court would neither overturn the same‑sex and interracial marriage precedents nor grant certiorari in a case directly seeking to overturn them—has been accurate so far.

Evidence cuts both ways.

Where the prediction looks directionally right (especially in competitive races)

• In high‑profile swing‑state races after Dobbs, Republicans with absolutist abortion positions often lost badly:

  • Michigan: Tudor Dixon backed banning abortion with no exceptions for rape or incest, allowing only life‑of‑the‑mother exceptions, and lost the 2022 governor’s race to Gretchen Whitmer by ~10 points. Analyses explicitly note her near‑total‑ban stance as a liability in a cycle where voters also passed a pro‑abortion‑rights constitutional amendment. (en.wikipedia.org)
  • Pennsylvania: Doug Mastriano advocated a ban from conception with no exceptions for rape, incest, or the life of the mother and was defeated decisively by Josh Shapiro in the 2022 governor’s race. (en.wikipedia.org)
  • North Carolina: Mark Robinson repeatedly rejected any “compromise” on abortion and said he’d outlaw it entirely if he had the power, then ran for governor in 2024 and lost to Democrat Josh Stein by nearly 15 points in a purple state. (en.wikipedia.org)

• Post‑Dobbs analysis of the 2022 midterms concluded abortion was a defining issue that helped Democrats and hurt Republicans seen as extreme; the Guardian’s post‑election read explicitly ties Dixon’s and Mastriano’s losses to their hardline abortion positions. (theguardian.com)

• GOP candidates in competitive 2022 races were documented scrubbing or softening earlier “no exceptions” or very rigid abortion language once Roe fell, reflecting exactly the kind of electoral pressure Jason anticipated. An AP report described more than a dozen such Republicans in battleground races who tried to distance themselves from prior statements favoring bans with few or no exceptions. (keyt.com)

• Since then, several prominent national Republicans have argued for a more moderate, “legal under some circumstances” posture:

  • Rep. Nancy Mace now publicly insists she will only support abortion legislation that includes rape, incest, and life‑of‑the‑mother exceptions and urges the party to move toward broadly popular middle‑ground limits. (en.wikipedia.org)
  • Nikki Haley centered her 2024 presidential campaign rhetoric on finding a “national consensus,” pointing to a 15‑week limit with rape/incest/health/life exceptions and explicitly rejecting the idea that a pure ban is realistic or electorally viable at the federal level. (en.wikipedia.org)
  • Party messaging guidance circulated by RNC‑aligned strategists recommended emphasizing that Republicans favor exceptions for rape, incest and life of the mother, highlighting the political necessity of not appearing to back absolute bans. (washingtonpost.com)

Taken together, these patterns in swing‑state and national races support Jason’s core intuition: in much of the country, Republicans who are perceived as insisting on abortion being illegal in all or nearly all cases have struggled to win or have felt compelled to shift to a “legal under some circumstances” position.

Where the prediction fails or overgeneralizes

• At the same time, a substantial bloc of Republican officeholders in deep‑red states has not moved into a clearly "legal under certain circumstances" bucket in the ordinary‑language sense; instead they have enacted or defended near‑total bans:

  • Alabama’s Human Life Protection Act imposes a near‑total abortion ban with no exceptions for rape or incest, only a narrow life‑of‑the‑mother carve‑out, and it took effect after Roe was overturned. (en.wikipedia.org) Republican leadership that backed it—including Gov. Kay Ivey and the legislators who passed it—remains electorally secure in a heavily Republican state.
  • A 2024 Guttmacher analysis notes that 14 states had total abortion bans in effect (i.e., abortion is broadly illegal, often with only very narrow exceptions) even after multiple election cycles post‑Dobbs. These bans predominantly exist in Republican trifecta states, whose GOP governors and legislators have continued winning elections. (guttmacher.org)
  • News and explainer pieces as of 2024 still list states such as Alabama, Texas, Louisiana, Kentucky, and others where abortion is banned in almost all circumstances and explicitly lacks rape and incest exceptions; yet Republicans firmly control statewide offices there. (fox5atlanta.com)
  • Tennessee’s near‑total ban has no exceptions for rape or incest; Republican Gov. Bill Lee, who backed sweeping abortion restrictions, was easily re‑elected in 2022 with nearly 65% of the vote. (en.wikipedia.org)

• Even some politicians with very absolutist prior rhetoric (e.g., Mark Robinson in NC) have modulated their messaging without actually renouncing support for much stricter bans if they had the power—suggesting that moderation in language doesn’t always equal a genuine move into a stable "legal under some circumstances" policy bucket. (en.wikipedia.org)

Why the verdict is "ambiguous"

Jason framed his prediction broadly (“Republicans are going to have to… They will not get office”), without specifying that he meant primarily competitive statewide or federal races rather than deep‑red strongholds. In practice:

• In swing and purple states, and in nationally visible contests, subsequent elections strongly support his claim: hardline no‑exceptions or near‑total‑ban stances have generally been punished at the ballot box, and GOP candidates have been pushed toward acknowledging at least some legal abortion.
• In many solidly Republican states, however, politicians who back laws making abortion effectively illegal in almost all circumstances have kept or won office, and total or near‑total bans remain in force. That directly contradicts the idea that such positions are electorally non‑viable across the board.

Because the real‑world outcome matches his forecast in some major contexts (competitive races, national messaging) but clearly not in others (safe red states with total bans), and because his wording doesn’t pin down which universe he meant, the fairest overall assessment is "ambiguous" rather than clearly right or clearly wrong.