One of the most well-known Supreme Court cases in history is undoubtedly Roe v. Wade. It established the right to an abortion as a personal matter and has continued to dominate American politics. The judgment was hailed as a victory for women’s equality and freedom by those who supported it. It was criticized by some as the Supreme Court going too far. Roe was the national abortion legislation for more over 50 years, despite the controversy that surrounded it. That is, until the Supreme Court responded to the frequently posed issue that many of us have been pondering in recent years: Could Roe v. Wade be overturned?
The Supreme Court cannot revisit the same case and make a different decision. Additionally, because of the legal principle of stare decisis, which means “leave the judgment stand” in Latin, succeeding judges are frequently reluctant to expressly overrule earlier judgments. The stare decisis doctrine, however, is not legally binding nor consistently applied. This point is shown by recent instances involving reproductive rights that attacked the freedoms guaranteed by Roe. A total overturn of Roe v. Wade previously appeared unthinkable. However, abortion rights may change through further judgments even without a total overturn. That explains why so many states have kept passing legislation that goes against Roe. In 2022, a Mississippi-based case of this nature was heard by the Supreme Court, which resulted in the surprising reversal of Roe vs wade.
State laws range from outright prohibitions on abortion with criminal penalties to protections for abortion that include money for clinics and legal safeguards for doctors. Due to state rules in effect before the Dobbs ruling that safeguard access even in the absence of Roe, abortion will still be permitted and accessible in some states. Another group of states, whose access to services is uneven, lack any clear legislation either defending or outlawing abortion. The provision of abortion services has already been prohibited in a number of states since the Supreme Court’s decision, and additional states are anticipated to follow suit in the coming weeks.
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What is Roe vs Wade
On January 22, 1973, the U.S. Supreme Court declared in Roe v. Wade (7-2) that excessively tight state bans on abortion are unconstitutional. The Court decided that a woman’s constitutional right to privacy, which it deemed to be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment, was violated by a series of Texas laws that criminalized abortion in the majority of cases.
In order to protect her identity, Norma McCorvey filed a federal lawsuit against Henry Wade, the district attorney of Dallas County, Texas, where Roe resided, in 1970. She used the fictional name “Jane Roe”. The Supreme Court made an effort to strike a balance between a woman’s right to privacy and a state’s interest in restricting abortion after rejecting Roe’s statement of an unrestricted right to end a pregnancy in any form and at any time. Blackmun stated that lawmakers must draught statutes carefully “to represent solely the genuine state interests at stake” because only a “compelling state interest” can justify restrictions on “basic rights” like privacy. The state’s compelling interests in pregnant women’s health and the potential lives of foetuses were then balanced by the court. It stated that a state would be permitted to control abortion “about towards the end of the first trimester” of pregnancy if it had a compelling interest in the unborn child’s health. The Court determined that the foetus reached viability, or “capable of meaningful existence outside the mother’s womb,” at around 24 weeks of pregnancy.
Roe v. Wade has faced numerous challenges since 1973, but they have not succeeded in overturning it. The Supreme Court ruled in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) that limits on abortion are unlawful if they impose an “undue burden” on a woman who wants to abort her unborn child. In Gonzales v. Carhart, the Supreme Court affirmed the federal Partial-Birth Abortion Ban Act of 2003, which barred the seldom used intact dilation and evacuation abortion method (2007). The Mississippi state statute that forbade the majority of abortions after the 15th week of pregnancy—well before the stage of foetal viability—was passed in 2018, and it was overturned by a lower court’s ruling in May 2021. The Supreme Court agreed to examine the ruling in its October 2021 term. Mississippi lawmakers passed the law despite the fact that it was clearly unconstitutional under Roe v. Wade and Planned Parenthood v. Casey. They did this in the expectation that a legal challenge would eventually reach the Supreme Court, where a conservative majority of justices would reverse or significantly narrow the scope of those rulings. Dobbs v. Jackson Women’s Health Organization had only one issue, which the Court accepted to review: the constitutionality of laws that prohibit all pre-viability abortions. In what would be a remarkable breach of the customary secrecy in which the Court conducts its deliberations, a draught of what appeared to be a majority decision in the case, prepared by Justice Samuel A. Alito, Jr., was leaked to a political news outlet in May 2022. The Court had decided to overturn both Roe v. Wade and Planned Parenthood v. Casey, according to the court’s judgment, which was issued in February 2022. In the formal Dobbs ruling by the Supreme Court, which was handed down in June 2022 and upheld Alito’s position that there is no constitutional right to abortion, both Roe and Casey were reversed, as was to be expected.
Effect of the overturning of Roe vs Wade
A nationwide ban on abortion would not result from repealing the 1973 Roe v. Wade ruling, which made abortion lawful nationwide. Instead, it would return authority to the states, allowing them to separately determine whether or not to permit abortion within their own borders.
What would likely happen if the ban were lifted in the states? 20 states presently have legislation in place “that might be utilized to restrict the legal status of abortion,” according to the Guttmacher Institute, a group whose research is referenced by both sides of the argument. This would be the case if Roe v. Wade were to be overturned. The 20 can be divided into four overlapping groups:
- If Roe were reversed, 4 states have passed legislation that would criminalize abortion immediately (Louisiana, Mississippi, North Dakota and South Dakota).
- In the absence of Roe, 7 states have legislation that demonstrate their intention to limit access to legal abortion (Arkansas, Illinois, Kentucky, Louisiana, Missouri, North Dakota and Ohio).
- Since 1973, 2 states have passed new abortion restrictions that have been ruled unlawful (Louisiana and Utah).
- Pre-Roe abortion bans are still in place in 13 states; however, they are legally unenforceable (Alabama, Arizona, Arkansas, Colorado, Delaware, Massachusetts, Michigan, Mississippi, New Mexico, Oklahoma, Vermont, West Virginia and Wisconsin).
Naturally, if Roe were to be overturned, some states with pre-Roe abortion restrictions might decide to relax them. And certainly, the Center for Reproductive Rights, a nonprofit that supports abortion rights, predicts that will happen at least in Massachusetts, Vermont, and West Virginia. These states all have legal or constitutional protections for abortion, showing that they won’t carry out their previous restrictions if Roe is overturned.
The Center for Reproductive Rights asserts that if the Supreme Court grants states the right to enact restrictions, several states that do not now have them will do so. The group predicts that 21 states will quickly criminalize abortion in total. This evaluation is based on both the political make-up of the state legislatures and the current legal framework.
Alabama, Arkansas, Colorado, Delaware, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, and Wisconsin are among the states listed by the Centre as being among those that fall under this category.
Contrarily, these organizations predict that abortion will likely continue to be legal in many states. According to Guttmacher, seven states already have special legislation defending the right to abortion, regardless of Roe. Alaska, California, Connecticut, Florida, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Vermont, Washington, West Virginia, and Wyoming are among the 20 states listed by the Center for Reproductive Rights as likely to maintain legal abortion. The Center claims that the remaining nine states are “medium risk” for abortion.