If Roe falls
Why overturning the 1973 landmark ruling won't mean the end of abortion
Why overturning the 1973 landmark ruling won't mean the end of abortion. Here's everything you need to know:
Is Roe in jeopardy? Justice Ruth Bader Ginsburg's death may change the political balance of the court, but even if conservative Amy Coney Barrett is confirmed to replace her, it won't guarantee the repeal of Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Historically, Supreme Court justices are reluctant to overturn major precedents, and only one current justice, Clarence Thomas, has unequivocally stated that he believes Roe v. Wade and a companion ruling, Planned Parenthood v. Casey, should be overturned. Barrett has given mixed signals about whether she'll vote to overturn Roe if she's confirmed. In 2013, she said she thought it "very unlikely at this point that the court is going to overturn [Roe]," and that the principle "that the woman has a right to choose abortion will probably stand." But as a devout Catholic, she has made her personal opposition to abortion clear: She once signed an ad from a pro-life group describing legal abortion as "barbaric." Kelley Robinson, executive director of the Planned Parenthood Action Fund, said that if Barrett is confirmed, an emboldened 6-3 conservative majority may overturn Roe. "People are understanding that this is real," Robinson said.
How would repeal happen? There are several cases now making their way to the court that could provide a basis for a Roe reversal, including a near-total ban on abortions in Alabama that has already been signed by Gov. Kay Ivey, as well as a case brought by Whole Woman's Health challenging a prohibition of the dilation and evacuation (D&E) method of abortion. Should Roe fall, the matter would revert to the states. Nearly a dozen states have passed "trigger" laws that will make all, or most, forms of abortion illegal the moment Roe is repealed. Seven have passed laws stating their intent to restrict abortion to the fullest extent allowed. Ten other states have passed laws ensuring abortion's legality. If Roe falls, says the Center for Reproductive Rights, abortion will become illegal in 24 states and three territories, and remain legal in another 21 states. Five states could go either way. In a post-Roe country, women in conservative states could still get abortions if they were willing to go to another state — and could afford to. But a woman living in, say, Mississippi might have to drive as many as 10 hours in order to have the procedure.
Can Congress intervene? If Roe were to fall, Congress could pass a national law either legalizing or prohibiting abortion in every state. Meanwhile, the total number of abortions in America has steadily fallen since reaching a high of 1.61 million in 1990. Experts at the Guttmacher Institute, an abortion research group, attributed that decline to the greater availability of highly effective forms of contraception — such as IUDs — through the Affordable Care Act. In 2017, the latest year for which data was available, the institute recorded 862,000 abortions — fewer than in any other year since Roe was decided.
Would the number of abortions fall? Yes, but not dramatically. A study from Middlebury College in Vermont found that states most likely to criminalize abortion already have the lowest abortion rates, because there are already so many restrictions. Alabama had an average historical rate of 8.3 abortions per 1,000 women ages 15 to 44; Mississippi, 8.6; Arkansas, 6.2; Oklahoma, 5.9. California and New York, both of which would keep abortion rights intact if Roe fell, had rates of 17.3 and 27.4, respectively. New Jersey's was 28.2. The Middlebury study found that repealing Roe would result in a 32.8 percent reduction in the abortion rate in conservative states, but nationally, America would only experience a 12.8 percent reduction. "Even if the pro-life legal movement locates its Holy Grail," said pro-life conservative writer David French, "almost 90 percent of the American abortion regime would remain intact."
What about mail-order drugs? Today about 40 percent of women who end their pregnancies do so by taking the abortion drugs Mifepristone and Misoprostol, which studies have shown are safe and effective at terminating pregnancies up to 20 weeks. The FDA limits their use to up to 10 weeks and requires women to get them directly from a health-care provider. Seven states explicitly prohibit their use, and authorities in several others have warned that they violate fetal harm and fetal homicide laws. (At least 21 women have faced charges for using them.) In the face of such resistance, some women have turned to black-market providers such as Aid Access, which obtains the drugs from India and then illegally ships them to women in the U.S. If Roe were to fall, pro-choice organizations would no doubt step up efforts to provide these medications. "I don't think you can put all of those different genies back in the bottle," said medical historian Andrea Tone at McGill University in Montreal. "Women are in charge of their procreative destiny."
Regulating providers out of business Many legal analysts think it's more likely a 6-3 conservative majority will uphold ever more restrictive state laws on abortion than repeal Roe altogether. So-called TRAP laws, or targeted regulation of abortion providers, place costly and logistically difficult burdens on abortion providers to the point where they are effectively prohibited from practicing. Five states — Mississippi, Missouri, North Dakota, South Dakota, and West Virginia — have only a single abortion provider. For 27 U.S. cities with more than 50,000 people, there is no abortion provider within 100 miles. In June, the court ruled 5-4 that a Louisiana TRAP law that would have required abortion providers to maintain admitting privileges at a hospital was unconstitutional and would have created burdens that "would fall disproportionately on poor women," as Justice Stephen Breyer wrote for the majority. The 2014 law, had it been upheld, would have left Louisiana with only a single abortion provider, in New Orleans. The court, said Diana Kasdan, senior staff attorney at the Center for Reproductive Rights, "does not have to overturn Roe to fully undermine the right to abortion."
This article was first published in the latest issue of The Week magazine. If you want to read more like it, you can try six risk-free issues of the magazine here.