Roe has fallen, and the fight over abortion in America will now rage on into a new and possibly even more polarizing and divisive chapter.
The U.S. Supreme Court ruled Friday, in Dobbs v. Jackson Women’s Health Organization, that the Constitution does not guarantee a right to abortion, in one of the most momentous and controversial decisions of the past few decades.
The court’s conservative majority overturned the 1973 decision in Roe v. Wade by a vote of 5-4. Roe had stood as one of the most debated rulings in the court’s history: revered by many women’s rights advocates and reviled by conservatives who believe abortion kills a human life.
"The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” read the majority opinion.
Under Roe and the court’s 1992 ruling in Planned Parenthood v. Casey, states had not been allowed to enact bans on most abortions until after a pregnancy had reached the threshold of fetal viability, when it is believed that an unborn child could survive outside the womb. That viability threshold is about 23 or 24 weeks.
The abortion issue will now be decided state by state. Abortion will not be outlawed across the country. Some states will now expand access to the procedure.
“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” read the dissenting opinion, joined by Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.
In at least 15 states abortion will be illegal. Most of these states — across the South, the Midwest and the Mountain West — have “trigger” laws in place that will now ban the procedure. The new laws will take effect within a few days in some places, and within a month in others.
The 15 states that are now expected to enact an outright ban on abortion are Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming.
Three other states — Georgia, Ohio and South Carolina — are likely to ban abortions after the sixth week of pregnancy. Two other states — Arizona and Florida — have passed 15-week bans this year.
That is a total of 20 states banning or limiting abortion within the first trimester or early in the second.
But others may join them. Iowa currently limits abortion after 22 weeks, and this month the state’s highest court said there is no right to abortion in Iowa’s Constitution. Republican lawmakers in the state are likely to try now to ban the procedure.
And so there are about 20 states, and the District of Columbia, where abortion is likely to remain widely available — and fairly well along into a pregnancy.
President Biden, a supporter of abortion rights, is limited in what he can do in response to the ruling. There are marginal changes he can make to expand access through the Food and Drug Administration and through Medicaid.
Conversely, the overall impact on abortion rates may not be as dramatic as anti-abortion activists might be hoping for, which is likely to lead to the next round of political skirmishes over the issue.
“Absolute bans in red states probably won’t have the effect that the right-to-life movement expects ... especially if blue states step up abortion funding, and especially given the difficulty of eliminating access to abortion medication,” wrote Mary Ziegler, a historian and attorney who has written five books about abortion law and politics, including “Dollars for Life,” which was released this month. “The question becomes what happens then.”
“Some conservative lawmakers will likely respond by trying to stop interstate travel for abortion or fighting for a nationwide ban — steps designed to eliminate abortion in progressive states,” she wrote.
Last December, when the Supreme Court heard oral arguments in the Dobbs case, Ziegler made the point even more sharply: “The right-to-life movement is aiming for the recognition of personhood and the outlawing of every abortion, nationwide. Roe is just the beginning,” she said then.
However, Justice Brett Kavanaugh signaled during those arguments that he does not believe the court can enact a nationwide ban. Kavanaugh, who was confirmed to the court in 2018, described the state of Mississippi as arguing that “because the Constitution is neutral, that this court should be scrupulously neutral on the question of abortion.”
In his concurring opinion in the court's final decision, Kavanaugh made this point even more explicitly.
"Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral. The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States," Kavanaugh wrote.
Since Chief Justice John Roberts wrote his own concurring opinion saying he supported a 15-week ban but did not support throwing out a right to abortion entirely, the court does not currently have a majority of judges who might even be open to enacting a nationwide ban on abortion.
It was clear last December, however, that the court was likely to dramatically weaken abortion protections, and even overturn Roe. But there was some thought that the court might enact a nationwide ban at 15 weeks of pregnancy.
Then, in early May, a draft of the court’s opinion in Dobbs was leaked to a Politico reporter. Politico also reported that a majority of justices were prepared to rule that Roe and Casey were wrongly decided, and that states should decide the issue.
Justice Samuel Alito wrote in the leaked draft opinion that the Roe ruling was “egregiously wrong from the start.”
It was not known for sure, however, that the court’s ruling would emerge in the same form as the leaked draft. However, the final decision that was released was largely the same.
Roe, Alito wrote in the final opinion, was “egregiously wrong and on a collision course with the Constitution from the day it was decided.”
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” he wrote.
The dissenting opinion said that under Roe and Casey, the court had “struck a balance” between Americans with “profoundly different views about the ‘moral[ity]’ of ‘terminating a pregnancy, even in its earliest stage.’”
“Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of,” the dissent said.
“Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s — no matter if doing so will destroy her life.
“... Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest,” the dissent said.
The liberal justices also expressed grave concern that other individual rights, to contraception and to “same-sex intimacy and marriage,” may be under threat from the conservative majority.
Now that the court has thrown Roe out, the American debate may become even more contentious, as the legal and political battles shift to a kaleidoscope of state legislatures and courts.
“Don’t believe [the Supreme Court] when the justices say this will deescalate debate about abortion,” Ziegler wrote. “That doesn’t seem to be where this is headed.”
Cover thumbnail photo: Yasin Ozturk/Anadolu Agency via Getty Images