WASHINGTON, DC - JANUARY 19:  Pro-life activists try to block the signs of pro-choice activists in front of the the U.S. Supreme Court during the 2018 March for Life January 19, 2018 in Washington, DC. Activists gathered in the nation's capital for the annual event to mark the anniversary of the Supreme Court Roe v. Wade ruling that legalized abortion in 1973.  (Photo by Alex Wong/Getty Images)

Could Roe v. Wade Be Overturned?

Roe v. Wade is arguably one of the most famous Supreme Court cases of all time. It established the right to abortion as a matter of privacy and has remained at the forefront of American politics. Supporters of the decision hold it up as a beacon for women's independence and equality. Critics view it as an overreach by the Supreme Court. 
 
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As states continue passing restrictions on abortion, many wonder: Could the Supreme Court overturn Roe v. Wade? Like most things in the law, the answer to this question isn't exactly a simple one. The court cannot return to the same case and change its mind. And the legal doctrine of stare decisis — Latin for "let the decision stand"— means later court members are often reluctant to explicitly overturn prior rulings. However, the principle of stare decisis is not legally binding or uniformly enforced. Recent cases on reproductive rights that chipped away at the rights recognized in Roe illustrate this fact.

Would the Supreme Court Overturn Roe v. Wade?

In the past, a complete overturn of Roe v. Wade seemed unlikely. But abortion rights can change through subsequent decisions, even without a complete overturn. That's why so many states have continued to pass laws contradicting Roe. If those laws are challenged up to the Supreme Court, it will have to revisit the issue and decide how far the privacy rights established in Roe can extend.

Map of the United States in gradients of blue indicating the level of protection for abortion

Cases that Upheld Roe

Roe v. Wade was previously upheld in two prominent cases: Planned Parenthood v. Casey and Whole Women's Health v. Herllerstedt. And most recently, in 2020, the Supreme Court decided June Medical Services v. Gee, a Louisiana case that examined a similar law to that of Whole Women's Health.

Planned Parenthood v. Casey

In 1992, the court in Planned Parenthood v. Casey affirmed the abortion right established by Roe and the states' right to restrict abortions after a certain point in pregnancy. The justices found that while states have a "legitimate interest" in ensuring abortion services are safe, they cannot place a "substantial obstacle" in the path of someone seeking those services.

The court also reinforced the idea that "the ability of women to participate equally in the economic and social life" of the United States has been increased by the ability to control their reproductive lives established in Roe.

Whole Woman's Health v. Hellerstedt

In 2016, the Supreme Court again left Roe in place when it decided Whole Woman's Health v. Hellerstedt. In this case, a Texas abortion statute required doctors who provided abortions to have "admitting privileges" at a hospital no more than 30 miles away from the clinic. In other words, they needed to be able to have their patients admitted to the hospital without approval from another doctor. The law also required abortion clinics to meet the same standards as same-day surgery centers.

After the admitting privileges requirement went into effect, the number of facilities able to provide abortion services in the state dropped from around 40 - to around 20.

The Supreme Court found that both provisions of the Texas law at issue placed "substantial obstacles" in the way of women seeking an abortion. And therefore, they violated the Constitution.

June Medical Services v. Gee

The Supreme Court's most recent decision relied heavily on Whole Women's Health since June Medical Services v. Gee also challenged an admitting privileges requirement for abortion providers. In a 5-4 decision, Chief Justice John Roberts (generally considered a "conservative" justice) joined the four "liberal" justices on the Court to strike down the Louisiana statute. As they did in 2016, the majority observed that abortion is one of the safest medical procedures available today. And if Louisiana's admitting privileges rule took effect, only one doctor and one clinic in the entire state would have been able to offer abortions.

Challenges to Roe v. Wade in the 2021-2022 Term

Two significant abortion rights cases arose during the Supreme Court's 2021-2022 term. The Court made a preliminary ruling on Whole Woman's Health v. Jackson in September 2021. This is the case connected to the restrictive abortion statute out of Texas known as Senate Bill 8 (SB8). The justices also agreed to take up Dobbs v. Jackson's Women's Health, a case arising from a Mississippi abortion statute. The Court heard oral arguments in Dobbs on December 1, 2021. Although SB8 made waves when passed by the Texas legislature, Dobbs has a higher potential to impact the rights laid out in Roe v. Wade.

Preliminary Ruling on Texas SB8

SB8 bans abortions after a fetal heartbeat can be detected - in most cases, around six weeks. The law is unique because government officials cannot enforce it. Instead, it allows private citizens to sue medical providers they believe violate the statute. This unique provision has been interpreted as a tactic to avoid judicial review.

In September 2021, the Supreme Court denied an injunction requested by the abortion provider to prevent SB8 from taking effect. On the surface, this decision seemed to signal that the Court was at least willing to consider overturning Roe. Similar abortion bans had been quickly struck down in the past, making this decision issued through the court's administrative "shadow docket" alarming to many pro-choice advocates.

However, a denial of injunctive relief is different from a decision on the merits of the case. Essentially, the Court ruled that it could not grant an injunction because of the statute's unique enforcement requirements. The plaintiffs could not show that, without an injunction, they would be "irreparably injured" because it was unclear whether the named defendants (who were government officials) could actually enforce the law.

Learn more about the Supreme Court's shadow docket on FindLaw's Don't Judge Me podcast.

Mississippi Case Puts Roe in Jeopardy

Mississippi's Gestational Age Act bans abortions after 15 weeks, well before the viability standard set by Roe v. Wade. And what makes this case different from previous challenges is that the state has explicitly asked the Court to overturn both Roe and Planned Parenthood v. Casey.

The state's only abortion clinic argues that the Constitution supports the fundamental right to "body integrity and personal autonomy in matters of family, medical care, and faith." Historically, thanks to Roe v. Wade, this has included abortion rights.

But Mississippi argues that stare decisis should not stop the Supreme Court from overturning Roe. In the state's view, the Roe v. Wade decision has been controversial from the beginning and, therefore, cannot be reasonably relied on as established law. Moreover, the state alleges that stare decisis is at its weakest in this case because it deals with Constitutional interpretation.

The clinic also argues that the justices should not even consider the issue of overturning Roe because the state did not include this argument in its original petition to the Supreme Court. There are several ways the case could play out.

On May 2, 2022, Politico released what appears to be a draft opinion for Dobbs by Justice Samuel Alito that would strike down both Roe and Casey. The draft says that "Roe was egregiously wrong from the start" and must be overturned. Although only a draft at this point, the document was labeled the "Opinion of the Court," which seems to indicate where the court stands. Justice Alito argues that Roe was an overreach by the 1973 court, writing that "[i]t is time to heed the Constitution and return the issue of abortion to the people's elected representatives."

What Happens if Roe Is Overturned?

Before 1973, abortion laws across the country varied widely. Some states had banned all abortions, while others had legalized them in certain circumstances. In determining that a Texas abortion statute violated the Constitution, Roe v. Wade established a legal framework for abortion regulations at the federal level. So, without Roe, it would once again be up to the states to decide how to regulate abortion.

If the Supreme Court overturned Roe, thirteen states have "trigger laws" that would immediately ban abortion: ArkansasIdahoKentuckyLouisianaMississippiMissouriNorth DakotaOklahomaSouth DakotaTennesseeTexasUtah, and Wyoming.

In AlaskaColoradoNew JerseyNew MexicoOregonVermont, and the District of Columbia, abortion is legal at all stages of pregnancy. Abortion would be legal pre-viability in 18 states, although some impose restrictions such as waiting periods:

Six states have abortion bans that they haven't enforced since the 1973 decision - but they could start enforcing them again in the absence of Roe:

A handful of states, including Florida and Georgia, passed restrictions post-Roe that are currently considered unconstitutional. How they would hold up depends on what new framework the Supreme Court established to replace Roe. Others have expressed an intent to restrict abortion to the maximum extent permitted by any new Supreme Court rulings on the subject.

All of this to say: If the Supreme Court overturns Roe, abortion regulation in the United States will likely become even more complicated than it is now.

Does a Conservative Majority Put Roe in Jeopardy?

Many people became especially concerned about the fate of Roe v. Wade when Congress confirmed Justice Brett Kavanaugh to the Supreme Court in 2018. On the surface, Kavanaugh's confirmation shifted the Court's political makeup more to the conservative side. President Donald Trump repeatedly said he nominated Kavanaugh because he thought he would overturn Roe. But, statements by Kavanaugh suggest otherwise.

During his confirmation hearings, Justice Kavanaugh told Senator Susan Collins that the Supreme Court's decisions "become part of our legal framework with the passage of time." He also said honoring prior Supreme Court decisions is essential to maintaining public confidence in the Court.

Anxiety over Roe v. Wade increased even more with the passing of Justice Ruth Bader Ginsburg in September 2020. Many pro-choice advocates worried that filling Ginsburg's seat with much more conservative Justice Amy Coney Barrett put abortion rights in grave danger. And indeed, Justice Barrett has a complicated history when it comes to abortion rights and stare decisis.

However, it is difficult to predict how any individual justice will side on a case, for example, when Chief Justice Roberts joined the majority to overturn abortion restrictions in June Medical Services. Or when Justice Neil Gorsuch not only agreed that Title VII protects gay and transgender individuals from discrimination, he wrote the opinion for the Court.

Other presidents have tried to undermine Roe v. Wade for decades by nominating Supreme Court Justices they thought might disagree with it. But, so far, Roe has withstood these challenges. For example, Justices Sandra Day O'Connor, David Souter, and Anthony Kennedy were all nominated by Republican presidents. And all three voted to uphold Roe in Planned Parenthood v. Casey.

Is Roe v. Wade Unconstitutional?

To answer this question, first, we have to look at the Supreme Court's history. The Constitution established the Supreme Court but didn't explicitly grant the power to determine whether state and federal laws are constitutional. That power came in 1803 when the Supreme Court decided Marbury v. MadisonMarbury was the first time the Supreme Court found an act of Congress violated the Constitution.

Ever since, it's been up to the Supreme Court to decide what federal law is or isn't constitutional.

Can the Supreme Court get things wrong? Sure. Several decisions from the Court's early history would not hold up in today's society. But the Supreme Court doesn't generally invalidate its own decisions - it just makes new ones. However, the challenges currently before the court and the current makeup of the court make an overturn more likely than it has been in decades.

Even if the Supreme Court decides against a complete overturn of Roe v. Wade, abortion regulation in the United States is by no means settled. Those opposed to abortion will continue to challenge constitutional privacy rights, and some of those challenges will find their way to the Supreme Court. There are also arguments to be made that the Ninth Amendment could protect privacy rights (including abortion).

FindLaw's Federal Courts blog provides up-to-date coverage on new cases headed for the Supreme Court, as well as the Court's decisions.

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