Roe v. Wade, the landmark case that made access to legal abortion a constitutional right in the United States, has been overturned by the Supreme Court, disrupting nearly 50 years of precedent.
The decision comes as SCOTUS ruled 6-3 in the Dobbs v. Jackson Women’s Health Organization case, which asked the Court to examine the constitutionality of a 2018 Mississippi law that bans abortions after 15 weeks of pregnancy. The news also arrives about a month after Politico reported a leaked draft majority decision signaling the Court’s plans to overturn Roe.
Such a dramatic move by the Court is sure to impact millions of women and pregnant people, creating a ripple effect across the nation. But how these impacts will be felt on a state-by-state level is complex, and thus it’s worth breaking down the origins of Roe in simple, digestible terms. Let’s dig in.
“Roe” has become shorthand for the Supreme Court case known as Roe v. Wade. First argued in 1971 and decided in 1973, the case examined whether the U.S. Constitution recognizes a woman’s right to end her pregnancy. Ultimately, the Supreme Court justices, by a 7-2 vote, decided that, yes, abortion is a constitutional right.
The case was put forth in 1970 by Jane Roe, the alias of a Texas woman who brought the case against Henry Wade, then the district attorney of Dallas County. In an eerie mirror to the present state of Texan politics, Texas law at the time deemed abortion illegal except in instances where it would prevent a mother’s death. Roe’s lawyers argued such caveats were vague and unconstitutional, and that making abortion illegal infringed upon Roe’s right to privacy.
In a majority opinion written by Justice Harry A. Blackmun, the Court argued that making abortion broadly illegal violates the due process clause of the Fourteenth Amendment, which ensures a citizen’s right to privacy. The clause reads that “no State shall...deprive any person of life, liberty, or property, without due process of law,” in essence meaning states must respect the rights afforded to Americans. Within the context of Roe v. Wade, a person’s bodily autonomy was considered part of their right to privacy, with excessive government regulation of a person’s body being unconstitutional.
More specifically, the Court argued that abortions should be treated differently at various points in a person’s pregnancy: In the first trimester, abortion may not be regulated by anyone besides a pregnant person and their doctor; in the second, a state may regulate abortion if such a regulation is “reasonably related to maternal health.” Finally, in the third trimester, once a fetus is “viable”—in other words, can survive outside the womb—states may regulate or prohibit abortion altogether, except in cases where the act is medically necessary to save a life.
No. Roe v. Wade is constitutional precedent, not a federal law. The Supreme Court and the wider judicial branch determine whether or not it is constitutional for a state to enact certain laws. But the Court itself does not codify those laws—that’s the job of the legislative branch.
Lawmakers on Capitol Hill could codify abortion protections into federal law, meaning that abortion would remain legal regardless of the Court’s decision to overturn Roe v. Wade. However, the Women’s Health Protection Act, which would’ve codified the right to an abortion, failed to pass in the Senate in May.
With Roe v. Wade overturned, the question of abortion’s legality would be decided entirely by individual states. Now that the case is overturned, abortion could become outright illegal in numerous states.
The Center for Reproductive Rights, a human rights organization and pro-choice group, maintains a database called “What if Roe fell?” which predicts at least 25 states are expected to ban abortion altogether if Roe v. Wade is overturned.
The overturning of Roe v. Wade also calls into question the legitimacy of the Court, which is expected to maintain precedent. Such precedent prevents landmark decisions from shifting every few decades and ensures governmental stability. But in a time of increasingly polarized politics, it seems unlikely that this Court will respect precedent.