Will Roe v. Wade be overturned?

Poste Jan. 12, 2022

By Ethan Donahue

Staff Editor

For decades, the conservative right in the U.S. has been campaigning to overturn the landmark 1973 Supreme Court ruling in Roe v Wade, which legalizes women’s rights to have an abortion.

Dobbs v Jackson Women’s Health Organization centers on a 2018 Mississippi law that bans abortion after 15 weeks except in “medical emergencies or for severe fetal abnormality”. This movement, embraced by the Republican Party and fueled by evangelical Christians, has pushed to elect conservative legislators at the state and federal levels, and advanced the placement of conservative justices on the US Supreme Court. Now, the anti-abortion rights forces in the U.S. are on the verge of a significant legal victory. It’s part of a wave of state abortion bans passed since the 2016 US presidential election that take aim at Roe v Wade, the landmark 1973 Supreme Court decision that guaranteed abortion as a constitutional right.

Since the 1990s, anti-abortion lawmakers have pushed to find the limits of an “undue burden,” pursuing laws that erode abortion access.

Many states now mandate 24 or 72-hour waiting periods, ultrasounds, parental consent requirements for teenagers and counselling that repeats anti-abortion claims. Since 2010, conservative states have also passed hundreds of targeted regulation of abortion provision (TRAP) laws, which place prohibitive and medically unnecessary restrictions on doctors and clinics that provide abortion care. This anti-abortion strategy at slowly getting rid of Roe v Wade has been extraordinarily successful.

Between 2011–16, over 160 abortion providers closed or stopped offering terminations, the largest rate of closures since 1973. Multiple states, including Mississippi, have one remaining abortion clinic in operation.

The Supreme Court, which likely won’t make a decision in the case until mid-2022, is faced with two key issues.

One of the central elements of Roe is that the state and federal governments cannot ban abortion before viability, the point at which a fetus can theoretically survive outside the pregnant person’s body (defined as approximately 23-24 weeks gestation).

The Mississippi ban falls well short of the viability threshold. As such, the Supreme Court is now considering whether all pre-viability bans on elective abortions are unconstitutional.

The second issue is respect for legal precedent. Since the Supreme Court was established in 1789, it has reversed its own constitutional precedents only 145 times, or in 0.5% of cases.

Roe v Wade, decided 48 years ago, is sometimes described as a “super precedent” decision, because the Supreme Court has repeatedly reaffirmed it.

Constitutional scholar, Michael Gerhardt, defines “super precedents” as, “constitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently supported over a significant period of time.”

In oral arguments, Mississippi’s lawyers invited the Supreme Court to use this case to overturn Roe v Wade. Anti-abortion lawyers and activists are optimistic their arguments will fall on receptive ears.

“The Constitution is neither pro-life, or pro-choice on the question of abortion,” Supreme Court Justice Brett Kavanaugh said during oral arguments on the constitutionality of Mississippi’s law. Instead, the Constitution “leaves the issue for the people of the states, or perhaps Congress, to resolve in the democratic process”, Kavanaugh said.

In 2016, Donald Trump, like every Republican presidential candidate dating back to Ronald Reagan, campaigned on a promise to appoint “pro-life judges” to the Supreme Court.

Despite serving only one term in office, Trump was able to deliver. He appointed Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020 to fill Supreme Court vacancies. Conservatives on the bench now have a 6-3 majority.

While conservative Chief Justice John Roberts is no supporter of abortion rights, he has been a swing vote on a range of issues and has an established interest in protecting the reputation of the Supreme Court. However, after Barrett was sworn in, conservatives no longer needed to appeal to him to form a majority.

If Roe v Wade is overturned and abortion rights are returned to the states, access to abortion will effectively be a geographical lottery. Twenty-two states have laws that could be used to ban or severely restrict abortion, while 15 states and the District of Columbia have laws that protect the right to abortion. Twenty-six US states are “certain or likely” to ban abortion if Roe is overturned, the institute found.

Abortion is a routine, common type of reproductive health care. Approximately one in four American women will have an abortion before they are 45. Despite the political controversy and polarising rhetoric, polling this year indicated that 80% of Americans support abortion in all or most cases, and at least 60% support Roe v Wade.

However, while abortion is common, three-quarters of US abortion patients are low income and more than half are people of color. They already face significant financial and logistical barriers in accessing this essential health care.

If Roe v Wade is overturned, abortion will still be safely and legally accessible for those who can afford it. The devastating consequences of such a decision will fall primarily on the shoulders of those least able to bear it.

The prospect that the top court could reverse nearly 50 years of legal precedent, leading to new battles in US states over women’s rights, has abortion advocates deeply worried about the year ahead. US women are gearing up for a new, polarizing, generational political battle.