What would happen in the US if Roe vs. Wade is overturned?
In 2021, a woman’s right to terminate a pregnancy once again finds itself in the spotlight of American politics. And once again, this hot button topic has been met with confusion and misinformation. We discuss Roe vs. Wade, and what would happen if it gets overturned.
In 1973, the top judicial court in the United States, the US Supreme Court, made a landmark decision that women across the country had a constitutional right to terminate a pregnancy. This decision meant that, in theory, every woman in the United States has a legal right to have an abortion, and healthcare professionals can legally administer an abortion.
This landmark decision was known as Roe vs. Wade (1973), named after those involved in the court case that led to the decision.
Protecting abortion rights against state laws
In the United States, each US state can administer its own laws, which results in many laws differing from state to state. However, if a state law is deemed to be unconstitutional, it will likely be challenged in the US courts, and ultimately overturned or rendered legally unenforceable.
Because the Roe vs. Wade decision determined that women have a constitutional right to terminate a pregnancy, any proposed or attempted state law that sought to challenge this right (for example, to make abortion illegal after six weeks or when a fetal heartbeat could be detected) would be deemed in court as unconstitutional and struck down.
Many states have attempted to restrict abortion since the 1973 decision by enacting their own laws, with varying success. However, the most meaningful state-wide abortion bills have been invariably struck down. In 2013, North Dakota passed a so-called “heartbeat bill” prohibiting abortion when a heartbeat could be detected, but this was subsequently quashed. Many other US states have passed restrictive abortion laws, but these remain legally unenforceable due to the Roe vs. Wade decision.
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The Texas “heartbeat bill” of 2021
In 2021 however, this changed. In May 2021, a Texas abortion bill – again dubbed a “fetal heartbeat bill” – was signed into law by Texas that prohibited abortion after six weeks. Despite pro-choice campaigners claiming that this law, like many other proposed state laws, was unconstitutional, the Supreme Court – now with a conservative 6-3 “super majority” – refused to hear the case brought forth by its critics. Consequently, the Texas heartbeat bill came into effect on September 1st 2021.
The “heartbeat bill” would allow private citizens to sue those who administered an abortion or even helped a woman obtain an abortion.
This was seen by many as a pre-cursor to the Supreme Court eventually hearing a case that could result in the Roe vs. Wade decision being significantly weakened or even overturned.
Only weeks later, on 20th September 2021, the US Supreme Court said it will hear arguments from a Mississippi case; a case that could potentially result in Roe vs. Wade being overturned. Mississippi has explicitly asked the Supreme Court overturn Roe vs. Wade.
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What happens if Roe vs. Wade is overturned by the Supreme Court?
There is lots of misinformation and confusion over what happens if the Supreme Court overturned Roe vs. Wade, with many claiming such a move would make it illegal to have an abortion across the whole of the United States. However, the reality is not this simple.
Roe vs. Wade is a decision that legally enforces the viewpoint that women have a constitutional right to terminate a pregnancy. If it is overturned, that constitutional right – on a nationwide level – no longer exists. But this doesn’t mean abortion automatically becomes illegal across the country. It means there is no nationwide constitutional protection – a protection that has resulted in so many restrictive abortion state laws being quashed in the past.
With no thorough federal abortion laws (there is a federal abortion law prohibiting certain abortion methods within the second trimester) the issue of abortion rights largely becomes a state-by-state issue, with state law becoming the primary influence on whether a woman’s circumstances allow her to terminate a pregnancy.
This means a woman’s right to an abortion will greatly depend on where she lives. States that seek to pass restrictive abortion laws – even laws that prohibit abortion entirely and whether they could make exceptions for cases of rape or incest – would no longer have to pass legal challenges pitting them against the Roe vs. Wade decision, since such a decision would no longer be in effect. This means many US states would likely pass restrictive abortion laws that would be legally enforceable.
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In fact thirteen US states have already passed abortion “trigger laws”. These are restrictive abortion laws that automatically come into effect as soon as Roe vs. Wade is overturned, without any need for additional legal legwork. Such states include Louisiana, Arkansas and Mississippi. Additionally several other states are likely to implement restrictive abortion laws swiftly after Roe Vs. Wade is overturned.
On the opposite end of the spectrum, however, are states that themselves protect a woman’s right to terminate a pregnancy, including New Jersey, and California who enshrine this right in the state’s own constitution. As such, Roe vs. Wade being overturned will result in little legal change in such states.
While Roe vs. Wade being overturned will not make abortions illegal across the entire United States, it will make it significantly more difficult for millions of women to have a legal abortion, and pro-choice campaigners will note that such a decision will likely incur the following consequences –
– Millions of women will have to travel up to hundreds of miles to get a legal abortion.
– The number of abortion clinics in the United States will decrease dramatically.
– There will be a significant rise in unsafe and illegal abortion procedures.
– There will be a significant rise in unwanted pregnancies being taken to term.
– An escalation in the anti-abortion movement including protests outside abortion clinics and threats aimed at women seeking abortion and abortion providers.
The overturning of Roe vs. Wade would prove to be a significant landmark moment in the ongoing topic of abortion rights in the United States and will make it significantly more difficult for women to get abortions throughout the country.
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