What's next for Roe v. Wade?
A more conservative Supreme Court considers rolling back privacy rights.
The Supreme Court has agreed to hear its first major abortion case since Justice Amy Coney Barrett was confirmed as the Court’s sixth conservative-leaning member. The case will most likely be heard in October and decided in Summer 2022. Here’s a look at what’s next for abortion law in the United States.
The new case will consider whether a Mississippi law that bans abortions after about 15 weeks of pregnancy is constitutional. Two lower federal courts have both ruled that it is unconstitutional, based on the precedent of Roe v. Wade, the famous 1973 case that made abortion legal prior to about 24 weeks throughout the United States.
As long as the federal courts are relying on Roe (and its 1992 counterpart, Planned Parenthood v. Casey), it’s pretty clear that the Mississippi law should be struck down. However, the curveball is that the Supreme Court could choose to reverse the precedent set in 1973 and set different standards for when abortion is and is not protected by law.
Before we look at what that might mean, let’s take a moment and look at the status of abortion access in the country today, with Roe and Planned Parenthood intact.
Mississippi, the state whose legislature passed the more restrictive abortion law, currently has one abortion clinic. As of 2019, five other states also have just one clinic (Source: CNN, based on more recent data from the same advocacy group as the graphic above). In short, there are many places where states are already successfully limiting access to abortion to the point where many people might find it extremely burdensome or impossible to obtain the procedure, even under current law.
Over the past few years, two state-level attempts to limit abortion access have been struck down by the Supreme Court. Both Texas and Louisiana passed laws that required doctors who perform abortions to have admitting privileges at a nearby hospital. The Supreme Court ruled that this was an undue burden on women seeking abortions and struck those laws down. (However, there’s now an additional conservative on the court, which means the balance of power might change next time around.)
So, let’s imagine that next summer the Court decides to reverse Roe and take the position that the constitution does not guarantee the right to have privacy as to whether to have an abortion. (Privacy is the key right on which Roe rests, and I’ll talk about the implications of that shortly.) What would happen?
The decision would go back to the individual states.
Ten states already have laws on the books that would make abortion illegal immediately if Roe were overturned. (Read more about these so-called “abortion trigger laws” at Wikipedia.) There are 23 states where Republicans control the legislature and governorship (Source: Ballotpedia), and we can safely assume many of those – perhaps with exception of swing-y states like Arizona, New Hampshire and Ohio – would eventually pass laws limiting abortion.
In the other 30 or so states, Democratic control of either the legislature or the governorship would probably prevent any restrictive abortion rules from becoming law. (In Kansas and Kentucky, the Republican legislature could override the Democratic governor’s veto.) There’s also a possibility some restrictive laws could come up via ballot measures, like the one that failed by a 60-40 margin last year in Colorado, though a state’s partisan lean would still probably predict the outcome of such a ballot initiative.
It’s also possible that Congress and the presidency could tilt far enough toward the Republican party that a federal law limiting abortion could pass. In the short term, that seems unlikely, but it’s certainly possible in 2024 and beyond. However, Congress would eventually be constrained by the fact that abortion restrictions are unpopular – members of Congress in competitive districts might rather it simply be left to the states so it doesn’t haunt them in future elections.
By the same token, a Democratic Congress and president could pass a law establishing a right to an abortion, regardless of whether the Supreme Court thinks that right exists in the Constitution. Overturning Roe would not make abortions unconstitutional, it would just mean that the Constitution doesn’t apply to abortions one way or the other.
And on that note, let’s talk a bit more about the constitutional basis for Roe v. Wade. The core of the ruling is that the Fourteenth Amendment protects privacy, which Roe says includes the privacy of making the decision to get an abortion before a certain point in pregnancy, roughly 22 to 24 weeks. In other words, the Court says that up until that point, a woman has the privacy to make her own medical decisions about her pregnancy without government interference.
The criticism of this approach is that Roe takes a broad view of what “privacy” means. The Constitution talks about privacy indirectly in a number of places, but clearly there’s a range of opinions on where privacy ends and government interest begins, and society’s consensus on that can change over time. (More on privacy rights in the Constitution from Wikipedia.) If the Court were to reverse Roe, they’d probably say that the right to privacy simply doesn’t extend to abortion. Ultimately, this is something of a judgement call based on who’s interpreting the Constitution, and it’s reasonable to expect that five of the current justices might say that Roe went too far in its interpretation of privacy.
However, I think there are some strong conservative arguments for expanding the right to privacy rather than contracting it. I’m delving into a bit of speculation here, but let’s imagine for a moment that you’re a conservative-leaning justice who wants to promote a free-market, libertarian view of the Constitution across the board, rather than just someone whose main goal is to eliminate constitutional protection for abortions.
An expanded right to privacy would support almost all the other major conservative and libertarian policy priorities today. When conservatives feel that their freedom of speech is under assault, or their right to bear arms is in jeopardy, does it really make sense to object to a broad interpretation of privacy rights? In an environment where people are suing universities for “reverse discrimination” (Source: ProPublica) and many conservatives feel the tide is turning to the point where white people experience more discrimination than people of color (Source: Harvard Business School), would a conservative Supreme Court really want to weaken the Fourteenth Amendment on which all those equal-protection claims are based?
I suspect this is one of those issues where many libertarian-minded thinkers will end up on the same page as progressives and decide that it makes much more sense for the government to err on the side of granting more individual rights than fewer. (The same trend has happened with same-sex marriage and legalization of cannabis.) No one would ever want the Supreme Court to take away a constitutional right to privacy. When abortion is framed in that way – that is, “you can win a cultural battle but sacrifice a major pillar of your constitutional right to privacy in the process” – I think many conservatives would have second thoughts. Why throw away a strong constitutional protection in exchange for more restrictive abortion rules in a bunch of states that already have nearly zero abortion clinics?
(I’ll interject for a moment and say that I favor the pro-choice viewpoint here – and I think the pro-choice viewpoint is especially strong because it lines up with the idea of expanding freedoms rather than restricting them. When we’re in a gray area, I think the government should lean toward allowing a wider range of beliefs and behavior.)
Overturning Roe might even be a huge disappointment to abortion opponents, because it would have a surprisingly small effect on the total number of abortions that take place in the country each year.
A 2020 New York Times analysis estimated that the reversal of Roe would reduce the number of abortions in the country by “at least 14 percent.” In other words, the states that would ban abortion are already making abortions very difficult to obtain, and in the states that won’t vote to ban abortion, nothing will change.
“Without Roe, the number of legal abortions in the United States would be at least 14 percent lower, Professor Myers and her colleagues estimated. That could mean about 100,000 fewer legal abortions a year, they found. The number is impossible to predict precisely because new clinics could open on state borders, and some people may order abortion pills by mail or obtain illegal surgical abortions, which may be dangerous.” – NYT analysis of the effect of overturning Roe
For the people who are directly affected, the changes would be dramatic. However, I think it’s fair to say that a 14-percent change is much smaller than what the typical pro-choice or pro-life advocate would expect.
To me, this is an indication that conservative politicians’ focus on abortion has been cynical at best and deceptive at worst. I suspect that many activists would be much less active if they knew they were working toward a 14-percent change. If you want to take the cynical view of conservative strategy, you might actually be better off keeping Roe intact so it can act as a somewhat-overhyped rallying point for your supporters, rather than overturning it and revealing that it wasn’t as powerful a ruling as it seemed. (You could make a similar argument about reproductive rights being a rallying point for progressives, but I’m focusing on conservatives because they control the Court and are seeking to change a long-standing precedent.)
And if you were a non-cynical conservative politician who honestly wanted to reduce the number of abortions performed in the United States, there are far more effective ways to do that than restricting the rights of citizens in states where abortions are already hard to obtain. The vast majority of women who have abortions say they do so in part for economic reasons:
“The reasons most frequently cited were that having a child would interfere with a woman's education, work or ability to care for dependents (74%); that she could not afford a baby now (73%); and that she did not want to be a single mother or was having relationship problems (48%).” – Source: Guttmacher Institute, 2005
If a policymaker wanted to reduce abortions in a positive way – by addressing root causes rather than making the procedure harder to obtain – they could address the high cost of childrearing with ideas ranging from direct payments (like the Child Tax Credit or Universal Basic Income) to subsidizing healthcare, daycare, preschool, college or other expenses parents are likely to incur. If people are choosing abortion in part for financial reasons, it makes sense that improving people’s financial situation would reduce abortions. Expanding and subsidizing access to contraception would also directly eliminate some abortions. I’d argue that a combination of the policies in this paragraph would reduce the number of abortions nationwide by much more than 14 percent over time. However, I suspect that for many politicians, reducing abortion is not really the goal; instead, having a hot-button issue is the goal.
And with that, back to the Court. We already know that John Roberts, one of the six conservative-leaning justices, is willing to vote against abortion restrictions, as he did in the Louisiana case last year. It only takes one other conservative justice to think about the bigger picture – “should I restrict privacy in order to send abortion laws back to the states?” – and decide that overturning Roe would hurt long-term conservative goals more than it would help. The states are divided on abortion today, and they’d still be divided without Roe. To get rid of Roe, five justices would need to be willing to rule against popular opinion and set a precedent that the Court can roll back privacy rights that have been established for decades. And even then, any state or Congress could expand the right to privacy and reaffirm the right to abortion at any time in the future.
That said, it’s certainly possible that we’ll see a ruling against Roe next year. But if we instead get a “surprise,” it might be because a group of conservative and liberal justices agree that more rights are generally better than less.