In Dobbs v. Jackson Women’s Health Organization, the Court ruled 6-3 that
The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.
Abortion regulation has now been returned to the individual states. Yet rather than resolving the debate over abortion in the US, we will likely see a dramatic escalation of abortion lawsuits and legislation.
That is because the goal of abortion opponents has always been to stop abortion nationwide. Overturning Roe v. Wade is just the beginning.
Roe v. Wade has been under constant attack
For 49 years, Roe v. Wade has been under constant attack from opponents of reproductive rights, surviving repeated legal challenges and reaffirmed on multiple occasions by the Supreme Court.
Despite the political controversy and polarising rhetoric from Republican politicians, 2021 polling indicated 80% of Americans support abortion in all or most cases, and at least 60% support Roe v. Wade.
However, after former President Donald Trump was able to fill three Supreme Court vacancies, conservatives had a 6-3 majority on the bench.
What can Biden and the Democrats do?
President Joe Biden swiftly issued a statement insisting a “woman’s right to choose is fundamental” and his administration has spent the intervening months meeting with abortion rights advocates. However, there is little of substance the president or Congressional Democrats can do to reverse the decision.
And although Democrats have a majority in both houses of Congress, without filibuster reform they do not have the numbers to pass legislation, which has stymied much of the Democratic agenda during Biden’s presidency.
Such a move would shift the contours of the abortion fight back to the national stage and would ensure abortion is front and centre in the 2024 presidential elections.AP Photo/J. Scott Applewhite
State laws on abortion access and provision
13 states already have “trigger” laws on the books that criminalise abortion if Roe is overturned. A further 10 are expected to move quickly to ban the procedure.
States hostile to abortion have also begun debating how to close legislative “loopholes”, considering laws that are more extreme than any previously proposed.
Opponents of abortion are also strategising about how to prevent patients from accessing abortion from out-of-state providers, including discussing banning interstate travel and making abortion providers and support networks subject to legal sanction.
Nineteen states already ban virtual provision of abortion care, and opponents of abortion are particularly keen to criminalise and limit patient access to medication abortion provided via telehealth.
The National Right to Life Committee has drafted model state legislation that would make it illegal to provide information on self-managed abortion via phone, internet, or website, effectively targeting the First Amendment right to free speech.EPA/Shawn Thew
Some states have laws enshrining the right to abortion
Supporters of reproductive rights have also been galvanised by the looming end of Roe v. Wade.
California has passed laws protecting abortion providers and patients accessing care from out-of-state civil lawsuits, while New York has passed a package of laws that would make it an abortion “safe haven”.
Impact on abortion patients
Politically and legally, the struggle over abortion rights is primed to explode nationwide, with no foreseeable end in sight.
Yet the impact of today’s Supreme Court decision will be most acutely felt by abortion patients.
Most of the toughest abortion bans and regulations are in the South and Midwest, rendering abortion inaccessible in a vast geographic stretch of the country.
Overturning Roe v. Wade will result in the closure of more than a quarter of the nation’s abortion clinics, placing huge pressure on the remaining providers to offer time-sensitive care to patients likely travelling hundreds of kilometres from home.
Banning abortion does not stop abortion
Banning abortion does not stop abortion, nor does it reduce the number of abortions. Regardless of their home state, pregnant people will still seek abortions, although they may need significant resources to do so and could face criminal sanctions.
The devastating consequences of this decision will fall primarily on the shoulders of those least able to bear it.
- ^ ruling (www.supremecourt.gov)
- ^ Roe overturned: What you need to know about the Supreme Court abortion decision (theconversation.com)
- ^ 2021 polling (www.forbes.com)
- ^ end of Roe v. Wade seemed inevitable (theconversation.com)
- ^ draft (theconversation.com)
- ^ homes of conservative justices (www.theguardian.com)
- ^ woman’s right to choose is fundamental (www.whitehouse.gov)
- ^ meeting with abortion rights advocates (edition.cnn.com)
- ^ Women’s Health Protection Act (www.npr.org)
- ^ filibuster reform (www.reuters.com)
- ^ promised (www.politico.com)
- ^ nationwide ban on abortion after six weeks (www.washingtonpost.com)
- ^ How the US right-to-life movement is influencing the abortion debate in Australia (theconversation.com)
- ^ patchwork of state laws (www.guttmacher.org)
- ^ rape or incest (www.npr.org)
- ^ so narrowly defined (www.washingtonpost.com)
- ^ complained (www.theguardian.com)
- ^ charged abortion patients with homicide (www.washingtonpost.com)
- ^ prevent patients from accessing abortion from out-of-state providers (edition.cnn.com)
- ^ ban virtual provision (www.guttmacher.org)
- ^ particularly keen to criminalise and limit (www.washingtonpost.com)
- ^ provide information (prismreports.org)
- ^ enshrining the right to abortion (www.guttmacher.org)
- ^ protecting abortion providers and patients accessing care (edition.cnn.com)
- ^ safe haven (www.politico.com)
- ^ pushing the White House (edition.cnn.com)
- ^ violates religious freedoms (www.nytimes.com)
- ^ 'A revolutionary ruling – and not just for abortion’: A Supreme Court scholar explains the impact of Dobbs (theconversation.com)
- ^ half of US women and girls of reproductive age (www.nytimes.com)
- ^ more than a quarter (www.cbsnews.com)
- ^ nor does it reduce the number of abortions (www.who.int)
- ^ vulnerable and marginalised populations (www.usatoday.com)
- ^ The end of Roe v. Wade would likely embolden global anti-abortion activists and politicians (theconversation.com)