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Life After Roe

It may seem counterintuitive, but to grasp just how incidental Roe is to the underlying conflict over abortion, consider what would follow if the court did in fact overturn the decision. A reversal of Roe would not, as some are apt to believe, have the same effect as a constitutional amendment banning abortion. We owe that notion to political oversimplifications and to a fundamental misunderstanding of what the decision really says.

In Roe, the court sided 7-2 with the argument of Norma McCorvey (referred to as Jane Roe in court documents for purposes of anonymity), who was asserting the unconstitutionality of a Texas anti-abortion statute. In its famously controversial decision, the Supreme Court struck down the law, thereby invalidating similar legislation in the other states that had criminalized abortion.

Up until then, each state had been free to determine its own legal restrictions on abortion, but Roe argued that the U.S. Constitution included an implied right to the procedure. Accordingly, the Court imposed a trimester framework regulating the degree to which states could restrict abortion, a ‘legal calendar’ later revised by Sandra Day O’Connor in Pennsylvania Planned Parenthood v. Casey. Were the Court to reverse this decision now, the particulars of abortion law would simply remand to individual states, where legislatures would be free take up the matter.

What this would mean from state to state is not entirely clear; however, one could reasonably expect abortion to remain legal at least in those states that have strong popular support for the procedure. Undoubtedly, some would choose to ban or severely limit abortion. Still others might maintain their laws as they are. In the end, however, it is clear that overturning Roe would not completely eliminate legal abortion, and might not even significantly reduce the availability of abortion services at all. Continued
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