The Ultimate Explainer On What It Means

Supreme Court Justices Neil Gorsuch and Brett Kavanaugh—both of whom voted to overturn Roe v. Wade … [+] this week—attend the State of the Union address on February 5, 2019.

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The Supreme Court on Friday overturned the nationwide right to abortion in its landmark Dobbs v. Jackson Women’s Health Organization ruling, causing major uncertainty about the future of abortion access in the United States. Here are answers to some of the biggest questions:

What did the Supreme Court’s ruling say?

In a decision by Justice Samuel Alito, the court upheld a Mississippi law banning abortion after 15 weeks of pregnancy. Five of the court’s nine justices also voted to strike down Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), effectively ruling abortion is no longer a nationwide right up to the point of fetal viability. Alito wrote that Roe v. Wade was “an abuse of judicial authority” that relied on “egregiously wrong” reasoning, and argued the right to abortion is not expressly mentioned in the Constitution and isn’t “deeply rooted in this Nation’s history and tradition.”

Four conservative justices joined Alito’s ruling, while Chief Justice John Roberts agreed to strike down Mississippi’s law but opposed fully overturning Roe v. Wade. The court’s three liberal justices penned a dissent that expressed sorrow “for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection.”

Which states have already banned abortion?

Over a dozen states have passed “trigger laws” that automatically ban abortion after Roe is struck down. Three of those states—Louisiana, Kentucky and South Dakota—immediately outlawed abortion after Friday’s ruling, and officials in Missouri, Oklahoma, Arkansas and Utah also allowed their states’ trigger bans to take effect. Texas’ trigger ban was set to be enacted 30 days after the court overturned Roe, but abortions stopped Friday after the state attorney general said abortion is now “illegal in Texas” and threatened to prosecute abortion providers using a nearly century-old law. Alabama also outlawed abortion Friday after a court allowed the state’s pre-Roe abortion ban to take effect.

Five more states with trigger bans are guaranteed to prohibit abortion, but require waiting periods or additional action like the state attorney general certifying the ban. They are: Tennessee, Mississippi, Idaho, North Dakota and Wyoming.

Will more states ban abortion next?

Almost certainly yes. The pro-abortion rights Guttmacher Institute projects up to 26 states will ban or strictly limit abortion. Among those states are Florida, Georgia, Ohio, Arizona, Michigan, Indiana, South Carolina, Nebraska, Iowa and West Virginia. Soon after Friday’s ruling, several GOP governors pushed state lawmakers to consider new abortion restrictions.

Michigan Gov. Gretchen Whitmer (D) has vowed to “fight like hell” to keep her state from enacting its 1931 abortion ban, though, and the state attorney general said she will not enforce the law. Wisconsin Attorney General Josh Kaul (D) also said he doesn’t plan to enforce a state abortion ban enacted in 1851, though Wisconsin clinics stopped offering abortions Friday.

Are there exceptions for rape, incest or threats to the life of the mother?

All states that have banned abortion so far carry exceptions when there is a risk to the life of the mother, but few allow for abortions in cases of rape or incest. Among states with trigger bans, only Utah, Idaho and North Dakota carry exceptions for rape or incest.

What penalties could there be for performing an abortion in a state where it’s illegal?

Many states with trigger bans—like Texas and Utah—classify performing an abortion as a felony punishable by fines and prison time. Maximum prison sentences vary from two years in Louisiana to 20 years in Texas, and Wyoming’s trigger ban doesn’t specify a penalty.

None of the trigger bans include penalties for the person who sought an abortion.

Which states have promised to protect abortion?

Sixteen states and Washington, D.C., have laws in place protecting the right to an abortion, according to the Guttmacher Institute. The states are: California, New York, Illinois, New Jersey, Colorado, Washington, Maryland, Massachusetts, Oregon, Nevada, Connecticut, Maine, Hawaii, Rhode Island, Delaware and Vermont.

These states’ policies vary. A few states like Colorado allow abortion throughout a patient’s pregnancy, while Massachusetts largely bans abortion after 24 weeks.

Could there be a nationwide abortion ban?

To be clear, the Supreme Court ruling does not immediately ban abortion across the U.S.—it just makes abortion access a state decision. But Republican lawmakers have started holding discussions about nationwide abortion restrictions, with House Minority Leader Kevin McCarthy (R-Calif.) telling CNN he supports a 15-week abortion ban.

Republicans would need to win back control of Congress and the White House if they hope to restrict abortion nationwide. Polling suggests the GOP has a strong chance of winning back Congress in the midterms, but Democrats would be able to use the Senate filibuster to block any legislation that does not have the support of at least 60 senators.

However, polling suggests many Republican voters don’t want a nationwide ban: 52% of Republicans said in a May CBS News/YouGov survey Congress shouldn’t make abortion illegal.

Can women travel to other states to get an abortion?

Yes. None of the state-level bans currently on the books suggest prosecuting women for traveling across state lines to receive an abortion.

“Under bedrock constitutional principles, women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal,” U.S. Attorney General Merrick Garland said in a statement Friday.

Can the decision be reversed?

It’s technically possible for Congress to codify abortion rights into federal law, but it’s unlikely anytime soon given the current makeup of Congress. Democrats control Congress by an extremely slim margin, but they would need to eliminate the Senate filibuster to codify any abortion laws since only two Republicans—Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska)—appear to support the idea. Key centrist Democratic Sens. Kyrsten Sinema (Ariz.) and Joe Manchin (W.Va.) have consistently opposed dropping the filibuster.

What does this mean for IVF and other reproductive procedures?

It’s possible the overturn of Roe could make it more difficult for some Americans to access assisted reproductive technology, like in vitro fertilization (IVF), though the decision doesn’t automatically limit those procedures. The broad wording of some state laws, several of which define life as beginning at fertilization, would appear to bring the legality of IVF procedures into question. Some fertility companies started moving human embryos away from states with trigger bans over the past few weeks in anticipation of Roe being overturned.

What about abortion pills?

This remains unclear. All of the trigger bans prohibit the use of abortion pills, but this is almost certainly an issue that will end up in court. Garland said Friday states cannot ban mifepristone, a Food and Drug Administration-approved pill designed to induce an abortion within the first 10 weeks of pregnancy.

Could it affect care for miscarriages?

Potentially. Many of the medications involved in treating miscarriages are also used for abortions, and the broad language of the bans could impact the availability of those drugs, while healthcare providers may risk prosecution if they are suspected of performing an abortion.

Are rights like gay marriage and birth control threatened by this decision?

Friday’s court decision was solely limited to abortion, with no direct impact on any other issues. However, conservative Justice Clarence Thomas wrote a concurring opinion in which he suggested the court should consider reviewing other landmark cases like Griswold v. Connecticut (1965), which guaranteed married couples the right to use contraception, and Obergefell v. Hodges (2015), which legalized same-sex marriage nationwide.

Still, Alito emphasized in the majority opinion that the ruling should not be interpreted “to cast doubt on precedents that do not concern abortion,” and argued Obergefell and Griswold are much different cases because they do not involve questions of life.

Lawmakers in some states have already suggested possible bans on contraception like Plan B, commonly called the “morning after pill,” but it’s unclear if the overturn of Roe alone gives states legal authority to enact such bans.

Do most Americans support overturning Roe v. Wade?

The data consistently says “no.” Poll after poll suggests a majority of Americans want abortion to stay mostly legal, especially in cases of rape or incest. But most Americans do not think all abortions should be legal—a June 2021 Associated Press/NORC poll found 61% of respondents thought abortion should be legal during the first trimester of pregnancy, but support drops to 34% for abortions in the second trimester and plummets to 19% in the third trimester.

Is Trump the reason Roe was overturned? What about McConnell?

Former President Donald Trump’s Supreme Court picks were definitely big factors. The court’s makeup took a hard right turn under Trump, who replaced moderate Anthony Kennedy with conservative Brett Kavanaugh and picked conservative Amy Coney Barrett to fill liberal Ruth Bader Ginsburg’s seat after her 2020 death.

Sen. Mitch McConnell (R-Ky.) also played a massive role in shifting the court’s ideology. As Senate majority leader in 2016, he prevented former President Barack Obama from replacing conservative Justice Antonin Scalia with moderate Merrick Garland, arguing it was too close to an election. The move cleared the way for Trump to replace Scalia with conservative Neil Gorsuch. But after Ginsburg died in September 2020, McConnell took a 180 and swiftly moved to confirm Barrett weeks before an election, in a process critics felt was rushed.

Many abortion rights advocates have lashed out at Trump, blaming him for the court’s decision on Friday. Trump has embraced that perspective, saying in a statement Friday that he should get credit for overturning Roe, which was “only made possible because I delivered everything as promised.”

Will there be any economic impact?

It seems likely. Studies have found abortion restrictions lead to negative economic impacts, especially for women. A 2020 report from the International Women’s Policy Center estimated that eliminating all abortion restrictions would raise the average salaries of women ages 15 to 44 by $1,610, with the national GDP increasing almost 0.5%. Researchers have cited factors like reduced labor force participation, lower education levels and increased turnover rates due to workers needing to devote more time to caring for children.

How are businesses reacting?

Many large U.S. companies told employees they will keep covering abortion as part of their health plans, and will now start covering travel expenses for those who need to go to another state for an abortion. Employers like AmazonAMZN
, JPMorgan ChaseJPM
and Disney have announced such policies.

Will the ruling impact Medicaid-funded abortions?

Abortions funded by state Medicaid programs are already fairly rare, since most states—including many states likely to ban the procedure—only pay for abortions for low-income women in cases of rape, incest and threats to the patient’s life. Only 17 states cover abortion along similar lines as other health services.

Source: https://www.forbes.com/sites/nicholasreimann/2022/06/25/roe-v-wade-overturned-the-ultimate-explainer-on-what-it-means/