Analysis

What happens if the Supreme Court overturns Roe v. Wade?

Supreme Court

News of the Supreme Court’s draft opinion that appears to overturn Roe v. Wade has prompted a wave of concern about how undoing the decades-old precedent will change the country. 

According to Politico, five of the nine justices voted to overrule the decision in conference, or while meeting after oral arguments in December. That majority could change, however, if any of the justices change their votes before the decision is announced in coming weeks.

Some have worried that ending Roe would mean women immediately lose access to abortion, that women could face criminal penalties, and that they wouldn’t be able to access certain types of health care.

Many of the ongoing concerns are overblown or false. 

Key Takeaways:

  • States will determine the legality of abortion if Roe is overturned, as well as penalties for breaking state law on abortion.
  • Health care will still be available to women, including care for miscarriages and ectopic pregnancies, which are not abortions. Abortion is the intentional homicide of a preborn child.
  • The promotion of at-home abortions without medical supervision is likely to endanger women further.

Here are some things to consider:

A lot depends on your state

One of the main arguments made for overturning Roe is that it overextended the federal government’s authority by regulating an area that should be reserved for the states and their legislatures. More specifically, Justice Samuel Alito’s draft opinion argues that the Court’s previous abortion opinions contained provisions that resembled policymaking. In overturning Roe, the Supreme Court would be allowing states to create their own abortion regulations and laws.

Judges and legal experts have disagreed about the source of this authority but Justice Alito’s draft opinion reads: “At the time of Roe, 30 States still prohibited abortion at all stages …  [Roe] imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State? As Justice Byron White aptly put it in his dissent, the decision represented the ‘exercise of raw judicial power,’ … and it sparked a national controversy that has embittered our political culture for a half-century.”

Later, he adds that “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” 

“The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting … That is what the Constitution and the rule of law demand.”

It’s likely that pro-life states will heavily restrict (or ban) abortion. For example, the decision to overturn Roe is coming in response to Mississippi’s decision to restrict abortions after 15 weeks of gestation. If the Court ends up overturning Roe, that law will stand for Mississippi, and many other states will move in some way to restrict abortion as well.

Currently, more than 20 states have laws that could restrict abortion once Roe is overturned. Texas law, for example, would revert to the total ban it had in place prior to the challenge it faced in Roe. Other states like Kansas will likely face political battles in which both sides attempt to advance their agenda. 

According to the pro-abortion Guttmacher Institute, the following states have pre-Roe bans that are not enforced: Alabama, Arizona, Arkansas, Michigan, Mississippi, North Carolina, Oklahoma, Texas, West Virginia, and Wisconsin. 

Meanwhile, these states have bans intended to take effect after Roe is overturned: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. Several of these states and Ohio also have laws seeking to limit abortion to the maximum extent the Court allows when Roe is overturned.

There are also many pro-abortion states which are not expected to restrict abortion at all, and may even enshrine Roe in their state law. This is what the state of New York did in 2018 and what Congressional lawmakers will do if pro-abortion lawmakers succeed in passing the Women’s Health Protection Act. 

It’s unlikely that this will pass in the current political environment but in the event it does, the bill could stop states from restricting abortion. States would likely attempt to challenge the law in federal court, opening the door to more uncertainty on the issue.

Currently, 16 states and the District of Columbia have laws protecting abortion either throughout pregnancy (Colorado, D.C., New Jersey, Oregon, Vermont) and/or prior to viability (California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New York, Rhode Island, Oregon, and Washington).

Women will be able to access health care, including treatments for ectopic pregnancies and miscarriages

Strictly overturning Roe does nothing to directly limit the options women have for obtaining health care.

States may pass abortion bans that cause abortion facilities like those affiliated with Planned Parenthood to shut down. But even in those states, women would still be able to access conventional forms of health care. Overturning Roe wouldn’t limit access to government-provided health care payments, either.

Additionally, the pro-life movement has a sprawling network of charities that provide alternatives to abortion along with many of the services currently offered by Planned Parenthood. According to a study by the Charlotte Lozier institute, in 2019, 2,700 pregnancy centers nationwide provided nearly $270 million in services. Overall, around two million people received help with more than 486,000 free ultrasounds, over 160,000 STI/STD tests, more than two million baby outfits, and nearly 1.3 million diapers.

Texas is a recent example of pro-life assistance going hand-in-hand with abortion restrictions. When the legislature passed its Heartbeat Act, it included $100 million in funding for alternatives to abortion. According to CLI, the state saw around 200 pregnancy help centers in 2019 with an estimated $33 million in materials and services.

Will women face criminal penalties for procuring abortions?

State legislatures have a wide range of powers and can theoretically apply criminal penalties should lawmakers choose to do so. However, the pro-life bills that have become law up to this point, like the one in Texas, tend to focus on penalizing the abortionist rather than the woman who procures an abortion.

For example, this is the case for Mississippi’s 15-week ban, which threatens physicians with suspension or revocation of their medical licenses. Congressional Republicans have also advanced federal legislation like the Born Alive Abortion Survivors Protection Act and the Pain Capable Unborn Child Protection Act – both of which reserve penalties for whoever commits the abortion.

Pro-abortion advocates will continue to promote dangerous alternatives to typical clinic settings

Pro-abortion activists have already indicated they will attempt to provide women with abortions in states that ban the procedure. Abortions are already dangerous in clinic settings and will could further threaten women’s health and lives if they are committed underground. 

Because of the Biden Food and Drug Administrations’s decision to expand the parameters for abortion pill distribution, women may self-administer abortion drugs that can have severe side effects – including death. It’s likely that demand for these pills will increase as states continue to restrict abortions and close abortion facilities. States like South Dakota have attempted to restrict or ban the use of the abortion pill regimen, which includes a combination of mifepristone and misoprostol. 

However, these pills can be obtained via mail and carry higher risks under the new regulations promulgated by the FDA. Last year, the agency said that it would remove an in-person dispensing requirement, which made it easier to ensure women received critical screening and consultation from health care providers.

The Trump administration defended the previous mifepristone safety requirement, saying that it “ensure[d] that the benefits of the drug outweigh its risks.” Under President Biden, the FDA reversed. Both the agency and the pro-abortion American College of Obstetrician Gynecologists argued that existing evidence indicated the pill was safe without the in-person requirement.

Pro-life advocates, however, argue that the FDA’s data is woefully inadequate and that other data points to significant complications. According to the American Association of Pro-Life Obstetricians Gynecologists (AAPLOG), in-person visits are necessary for detecting life-threatening ectopic pregnancies and determining whether women need the medication Rhogam designed to help prevent complications in future pregnancies.

They’re also critical for determining gestational age as the abortion pill regimen is only intended to be administered at earlier stages of pregnancy. 

The left-wing outlet Vice recently promoted an anarchist group advocating that women manufacture their own medication by obtaining misoprostol through veterinary sources.

Dr. Christina Francis, who leads AAPLOG, told Live Action News the move was extremely dangerous. “Making homemade misoprostol tablets to induce abortion is not only dangerous for the preborn lives that will be lost but also for the women taking them,” she said Wednesday, adding:  

Misoprostol-only abortions have a two times higher failure rate which leads to a greater risk of hemorrhage or need for surgery. However, calls from abortion advocates that this is what women will be driven to if Roe is overturned ring hollow – as this demedicalized approach to chemical abortion is exactly what they have been demanding for the last two years and what already exists since the FDA lifted nearly all restrictions on the abortion pills in December 2021.

Dr. Francis added, “Women (or their abusers) can now order these pills online, without medical supervision, and often receive them from overseas pharmacies with no safety or quality oversight.  It is time for the abortion industry and its allies to stop claiming they care about women’s health.  Women deserve better than this – they deserve fully informed and compassionate healthcare.”

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