Predictions are high for the overturn of Roe v. Wade, the landmark 1973 case that required all 50 states to allow abortion on demand. But what would actually happen across the United States if Roe fell? One answer is that it would depend on how the United States Supreme Court overturned Roe. Let’s briefly explore what could happen in a post-Roe America.
1. Abortion could be returned to the states.
If the Supreme Court flatly overturns Roe v. Wade, declaring its former decision unconstitutional, abortion would return to the jurisdiction of each state. When Roe was decided, each state had its own set of laws on abortion. Most states had decided that abortion was illegal, and this was historically the position of states throughout the U.S., once discoveries regarding the reality of fetal life were made. Colorado, California, Hawaii, Oregon, North Carolina, Washington, Alaska and New York were the first states that made abortion legal in some circumstances — years before Roe.
If the Supreme Court decided that Roe was constitutional overreach and that abortion — since it is not directly mentioned in the Constitution — is an area reserved to the states (as criminal law generally is), then each state would need to decide how to handle abortion. Decisions could be made through votes of the people, the state legislature, or the state court system.
2. Abortion could be made illegal under the 5th and 14th Amendments.
If, instead of merely deciding that Roe was constitutional overreach, the Supreme Court decided that preborn children have rights as a class of people, abortion would be prohibited nationally. Similar to murder, which no state can sanction and allow, abortion would be viewed nationally as the unlawful taking of an innocent human life.
Both the 5th and 14th Amendments give human beings — not just citizens — the right to equal protection under the law. When a fundamental right — the right to life being chief among them — is violated, and the government approves through law, action, or intentional inaction, the Supreme Court considers this discrimination. Discrimination by the government or “under color of state law” is not allowed in the United States.
Even Justice Blackmun, the author of Roe v. Wade, stated that if the preborn child were considered a person for purposes of the 14th Amendment, the arguments in favor of Roe (abortion on demand) would “collapse.”
3. Pregnant women will still need empowerment and practical support.
When Roe v. Wade is overturned, women will still get pregnant. And some of these mothers will still be in difficult or dangerous circumstances. There will be a greater need than ever for pregnancy resource centers and medical clinics that serve pregnant mothers and their children. Churches, communities, and families will be needed to come alongside pregnant mothers and families in need and provide them with practical support. Women will need to hear messages of empowerment: that they were designed to give life, not take it; that they are stronger than they know; that their nation, their state, and their community will support them.
A nation without Roe v. Wade will be a freer, more compassionate, and more constitutional nation. And it will take all of us to live out pro-life values by embracing every human being who needs our help and our voice.