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?

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Roe v. Wade is arguably one of the most famous Supreme Court cases of all time. It established a woman's right to abortion as a matter of privacy and has remained at the forefront of American politics for decades. 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. As states continue passing restrictions on abortion, many wonder: Could Roe v. Wade be overturned?

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 members of the Court are reluctant to specifically overturn prior rulings. That said, the principles of stare decisis are not legally binding or uniformly enforced. This is illustrated by the fact that recent cases on reproductive rights have chipped away at the rights recognized in Roe.

Would the Supreme Court Overturn Roe v. Wade?

A complete overturn of Roe v. Wade is unlikely because of stare decisis. But abortion rights could change through subsequent decisions. That's why so many states have continued to pass laws that contradict Roe. If those laws are challenged all the way up to the Supreme Court, it will have to revisit the issue and decide how far the privacy rights established in Roe can extend.

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 once 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 on the subject relied heavily on Whole Women's Health, as 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.

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 could once again be up to the states to decide how to regulate abortion.

If Roe was overturned, eight states have "trigger laws" that would immediately ban all or nearly all abortions: Arkansas, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Tennessee, and South Dakota.

Abortion would be legal and generally available in 13 states:

  • California
  • Connecticut
  • Delaware
  • Hawaii
  • Illinois
  • Maine
  • Maryland
  • Nevada
  • New York
  • Oregon
  • Rhode Island
  • Vermont
  • Washington

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

  • Alabama
  • Arizona
  • Michigan
  • New Mexico
  • Oklahoma
  • Texas
  • West Virginia
  • Wisconsin

A handful of states 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.

Meanwhile, five states and the District of Columbia do not have their own rules on abortion. All of this to say: if Roe is overturned, 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 Justice Brett Kavanaugh was confirmed to the Supreme Court in 2018. On the surface, Kavanaugh's confirmation shifted the Court's political makeup more to the conservative side. Plus, 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 reportedly 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 worried that Ginsburg's seat being filled by 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's important to remember that, at least in theory, the job of a Supreme Court justice is not a political one.

Sometimes justices surprise us, like 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, but wrote the opinion for the Court.

Other presidents have tried to undermine the case 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 take a quick 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 about in 1803 when the Supreme Court decided Marbury v. Madison. Marbury 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 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.

A recent poll showed that the issue is much more complicated than the loudest voices in the debate make it seem: 77% of those surveyed were against an overturn of Roe v. Wade. But, within that, there are still a lot of caveats. Some wish to see abortion remain legal but have it regulated differently. Others want the Roe framework to stay as-is.

Although a complete overturn of Roe v. Wade is unlikely, abortion regulation in the United States is by no means settled. Those opposed to abortion will continue to challenge Roe, and some of those challenges will find their way to the Supreme Court. FindLaw's Supreme Court 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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