States will now decide abortion laws. Here's why that could be a good thing.

·5 min read

As is the case with most cultural flash points these days, there doesn’t seem to be any room for rational debate or compromise on abortion.

Case in point: the volatile outbursts and protests – even in front of conservative justices' homes – that took place even before the U.S. Supreme Court overturned Roe v. Wade, the 1973 decision that created a federal right to abortion.

It’s the loudest voices that get the most air time, but most Americans fall somewhere in the middle of this highly charged debate.

Supreme Court ruling won't make abortion illegal for all Americans

Keep in mind now that the court has used the Mississippi case (Dobbs v. Jackson Women’s Health Organization) to overturn Roe, that the decision won't make abortion illegal nationwide. Rather, it returns to the states the ability to protect life as they see fit.

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Our system of federalism exists so that states can best meet the needs of their citizens, and it ensures lawmakers are directly accountable to their constituents. That’s why the states are the best place for the country to grapple with abortion.

A recent Pew Research Center survey highlights Americans’ complicated views on the matter.

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“As the country approaches what could be a watershed moment in the history of abortion laws and policies, relatively few Americans on either side of the debate take an absolutist view on the legality of abortion – either supporting or opposing it at all times, regardless of circumstances,” Pew states.

Anti-abortion rally in Austin, Texas, on May 14, 2022.
Anti-abortion rally in Austin, Texas, on May 14, 2022.

A majority of adults – 71% – say abortion should either be mostly legal or mostly illegal or say they would support exceptions to their full support or opposition to abortion.

This is true even when broken down by political party. Pew found most Democrats believe abortion should be illegal in some instances, such as factoring how far along a woman is in her pregnancy. And most Republicans are open to legal abortion when the woman’s life is at risk or in the case of rape.

Most Americans' views on abortion are nuanced

In short, many Americans who say they support abortion rights usually place conditions on that support and would back restrictions to abortion access. And the same goes for those who say they oppose abortion.

Erin Morrow Hawley, a senior fellow at the Independent Women's Law Center and a former clerk to Chief Justice John Roberts, said justices in the 1973 Roe decision were wrong to take these decisions from states.

“It’s hard to find anyone who thinks that Roe was rightly decided, even among constitutional law scholars,” she said. “It overturned nearly every state’s pro-life law.”

Hawley said the court had a rigorous test when it came to deciding whether something should be protected as a liberty interest.

“There is no evidence that abortion is a right deeply rooted in our nation’s history, which is what is required,” she said.

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And for those who were reluctant to overturn precedent, Hawley said, it’s not unusual for the court to do so. Stare decisis has its place, but it’s not enough of a justification to keep a wrong decision. Hawley noted how Justices Brett Kavanaugh and Amy Coney Barrett pointed out in oral arguments that some of the court’s best decisions are those that have reversed precedent.

Brown v. Board of Education of 1954, for instance, overturned the “separate but equal” justification used for segregated schools in Plessy v. Ferguson, even though that decision had stood for nearly 60 years.

Sure, overturning Roe will still have huge implications, but maybe not as momentous as some are portraying.

The pro-abortion rights Guttmacher Institute estimates that as many as 26 states could make most abortions illegal if Roe is tossed. Thirteen states have “trigger laws” ready to go, and nine states still have pre-Roe abortion bans on the books. Other states have bans or strict laws that have been enjoined but could likely take effect in a post-Roe world.

That might sound significant, but many of those states already have some of the strictest restrictions on abortion, and they also tend to have more conservative populations less open to abortion.

That’s why research has indicated legal abortions would fall by only 13% now that the court has overturned Roe. Plus, access to abortion pills has become widespread, and their use would probably continue, even in states with complete bans.

Allowing abortion to be decided at the state level also helps put this country more in line with international abortion law and policy, Hawley argued. The United States has been one of just a handful of countries – others include China and North Korea – without gestational limits on abortion. It also was among roughly 12% of countries that permit elective abortion past 20 weeks, although states can impose their own legal restrictions after the point of viability.

Sending abortion back to the states certainly makes for more closely watched legislative and gubernatorial elections, as voters will have a much bigger voice in what each state’s abortion framework looks like.

Despite all the uproar over Roe, overturning this precedent could be the surest way for Americans to ensure they are living under governments that best reflect their values.

Ingrid Jacques is a columnist at USA TODAY. Contact her at ijacques@usatoday.com or on Twitter: @Ingrid_Jacques

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This article originally appeared on USA TODAY: Overturning Roe v. Wade gets abortion to states like Texas, California

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