On December 1, the Supreme Court heard oral arguments to Dobbs v. Jackson Women’s Health, the case that challenges the Mississippi law that bans abortion after 15 weeks of pregnancy for violating the constitutional protection of abortion, set by the landmark decision, Roe v. Wade.
Among countries with broad access to abortion, only three of them, including the U.S., still base abortion rights on court decisions, not through the legislative process. For Americans, their right to abortion depends on Roe v. Wade, a Supreme Court decision issued in 1973 that ruled the Texas abortion statute in violation of the Fourth Amendment. Prior to Roe, only four states permitted abortion. Several others allowed the procedure for health reasons. The Supreme Court ruling pushed the states to loosen up their abortion legislation. It has also been serving as a precedent for many other cases involving abortion, such as Planned Parenthood v. Casey in 1992 and Whole Woman’s Health v. Hellerstedt in 2016.
Now, with a conservative supermajority, the Supreme Court seems poised to uphold the Mississippi abortion law that is clearly in conflict with Roe v. Wade. Will the fate of Roe and a possible overturn revert the progress made by the decision in the past five decades?
After the hearing on Wednesday, it became clear that the decision in Dobbs would be entirely based on the ideological composition of the Court. On the left, the three liberal justices advocated for striking down the Mississippi abortion law in accordance with the ruling in Roe. Justice Sotomayor argued that overturning Roe would be perceived by the public as a purely political act and could damage the credibility of the Court.
On the right, Chief Justice Roberts proposed upholding the Mississippi law without setting a new federal cutoff for abortion, but the other five conservative justices, including three Trump appointees, seemed firm about overruling Roe completely and devolving the authority over abortion back to the states.
The Supreme Court is expected to issue a decision on the case in the following months. If the majority of justices agree to overturn Roe v. Wade or seriously curtail its capacity, 26 states will certainly or very likely ban abortion. These states contain half of America’s population of women of childbearing age. According to research by the Guttmacher Institute, in the 48 years after Roe v. Wade was decided, there have been more than 1,300 state-level abortion restrictions, 44% of which were enacted in the last decade, and 106 in 2021 alone, a record high. Most of these statutes are inactive or are blocked by court orders but will go into effect immediately after the Supreme Court ruling.
Among the 26 states hostile toward abortion, nine of them, including Alabama, Michigan, and Oklahoma, still have abortion bans enacted before Roe that could be promptly restored.12 states also have so-called “trigger bans” that take effect automatically or with simple procedures after Roe is overturned. Louisiana, for example, is one of the first states to adopt such a statute in 2006 that will make abortion illegal once the overturn of Roe restores the state’s ability to outlaw abortion. Other states have bans on abortion after six or eight weeks of pregnancy or have amendments to the state constitution that prohibit the protection of abortion rights.
Overall, access to legal abortion is expected to decrease by at least 14% in a post-Roe era, according to a study led by Middlebury College and UCSF based on the effect of closing abortion clinics in Texas. Such a decrease would inflict disproportional damage on women of color, teenagers, poorer families, and those without documentation and insurance. For people who are denied access to abortions in their home states, it is still possible to get an abortion across state lines, but for those who live in remote areas, especially in the South and the Midwest, the distance to the nearest abortion clinic would significantly increase.
Finally, it is also worth considering the political aspect of overturning Roe v. Wade. Traditionally, the Supreme Court is considered to be outside the realm of political shenanigans. By discarding the precedent set by Roe, the Court is signaling that it is willing to step outside the neutral zone to fulfill certain partisan agendas. With the mid-term election quickly approaching, such a signal would send very different messages to supporters of each party.
“I am the post-Roe generation” read one of the signs held by anti-abortion protesters outside the Supreme Court during the Dobbs hearing. Without one of the nation’s most important legal decisions and the foundation for reproductive freedom, America is destined to enter a different era, but the effect of overturning Roe is far from being fully realized.