Background

Lawmakers across the country are preparing for a Supreme Court ruling this summer that could overturn Roe v. Wade, the landmark 1973 case that established a constitutional right to an abortion. Legal analysts expect the conservative majority of the high court to undermine, if not outright overturn, Roe as a result of arguments heard last year in Dobbs v. Jackson Women’s Health Organization.

At least three justices – Clarence Thomas, Samuel Alito, and Brett Kavanaugh — appeared ready to overrule Roe entirely. Chief Justice John Roberts seemed likely to uphold the Mississippi law at the center of Dobbs, banning abortion after 15-weeks, and thus carve away at Roe and Planned Parenthood v. Casey.

Roberts also suggested that 15 weeks would be enough time for women to decide whether to obtain an abortion. If the case boils down to having a meaningful choice to terminate a pregnancy, then “why would 15 weeks be an inappropriate line?” he asked Julie Rikelman, who argued on behalf of the clinic. “Viability, it seems to me, doesn’t have anything to do with choice,” Roberts continued. “If it really is an issue about choice, why is 15 weeks not enough time?”

Justice Neil Gorsuch used his time to question the “undue burden” test, a legal standard to separate permissible restrictions from those that are unconstitutional. For instance, a 48 hour waiting period before getting an abortion may be considered an undue burden, or a substantial obstacle that could prevent a women from seeking/recieving abortion care. Gorsuch suggested this standard is “difficult to administer” and should be abandoned, in effect removing a major barrier to abortion restrictions.

Finally, Justice Amy Coney Barrett kept her intentions better hidden than the other justices, but some of her questions signal a likelihood to side with Mississippi.

In one particularly remarkable moment, Barrett appeared to argue that being forced to carry and birth a child is no big deal. “It doesn’t seem to me to follow that pregnancy and parenthood are all part of the same burden,” she said. “It seems to me that the choice, more focused, would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more” before terminating their parental rights after giving birth.

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The death of Roe

Yesterday, the American public experienced an unprecedented event: the leak of a draft opinion from the Supreme Court. On top of that, the draft opinion (pdf) overturns the monumental decisions Roe v. Wade and Planned Parenthood v. Casey, removing all federal protections of abortion rights.

“We hold that Roe and Casey must be overruled,” Justice Samuel Alito writes for the majority. He is reportedly joined by Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett; Chief Justice John Roberts reportedly plans to dissent, but would weaken Roe by allowing a 15-week abortion ban to remain in place.

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law…It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.

It is important to note that justices may change their votes during the drafting process (and, by some reports, often do). The final outcome, expected within the next two months, may be different from that reflected by Alito’s draft opinion.

Crucially, Alito mentions other rights that are on the chopping block (in his mind): Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage):

Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas…and Obergefell v. Hodges…None of these rights has any claim to being deeply rooted in history.

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What happens if Roe falls

Prior to Roe v. Wade in 1973, nearly every state prohibited abortion except in cases when the woman’s life would be endangered by carrying the pregnancy to term. Only four states had repealed their anti-abortion laws by the late 1960s: Alaska, Hawaii, New York, and Washington state.

Nine states still have abortion bans on the books from before Roe was decided. State officials could seek to revive these laws in: Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, Texas, West Virginia, and Wisconsin.

13 states have implemented trigger bans that would automatically ban abortion if Roe is overturned: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

16 states already have near-total bans or 8-6 week bans in place. Some are currently blocked by court order; the Supreme Court overturning Roe would allow these bans to take effect in: Alabama, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, Texas, and Utah.

In all, abortion is certain or likely to be banned in at least 26 states should Roe be overturned.

16 and the District of Columbia have laws that protect the right to abortion (though the extent varies): California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington state.