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On Wednesday, the justices heard arguments on Dobbs v. Jackson Women's Health Organization, a case that centers on a Mississippi law that would ban all abortions after 15 weeks. That law is unconstitutional based on existing precedent established nearly 50 years ago in Roe v. Wade and codified in later rulings — which bars prohibitions on abortion before fetal viability, at around 23 weeks. Mississippi has asked the court not only to throw out the viability standard but to also rule that there's no constitutional right to abortion at all.
Legal analysts from across the political spectrum came out of Wednesday's arguments believing that at least five of the court's six conservative justices are willing, and in some cases eager, to do just that. The final ruling on Dobbs is expected to come in June.
If the court does overturn Roe, states would be free to set their own rules on abortion, including whether to prohibit it entirely. About half of all if Roe is eliminated, according to an analysis by one abortion rights organization. A dozen states even have "trigger laws" designed to automatically ban abortion the moment Roe is gone.
Why there's debate
For nearly half a century, Roe v. Wade has been at the center of the debate over abortion rights in the U.S. Its repeal wouldn't end that fight, but it would change it in fundamental ways.
Maybe the most important shift, many experts say, is abortion laws would no longer be something decided by the courts but instead by lawmakers and the voters who elect them. The end of Roe could in an instant make abortion rights one of the most important issues in future elections — including next year's midterms. Some forecasters believe that could benefit Democrats, since polls show entirely.
In the absence of Roe, a number of ongoing reproductive rights debates will likely move to the forefront. One of the most heated fights is expected to be over , medication that can be sent through the mail and taken at home to terminate pregnancy. Abortion rights groups are pushing to make the pills more accessible to people in states primed to prohibit surgical abortions in the near future. At the same time, GOP lawmakers in those same states are working to ban them. Similar battles could play out over things like morning-after pills, traditional contraception and — depending on the makeup of Congress — federal legislation to either permit or ban abortion nationwide.
A decision overturning Roe could also have significant ripple effects for the court itself. It would fuel views on the left that the nation's top judicial body has become corrupted by partisanship and possibly increase support for efforts to establish term limits or pack the court. Conservatives may also be emboldened to seek the reversal of other landmark rulings they disagree with, like the one that legalized same-sex marriage.
The Supreme Court also recently heard arguments in concerning a Texas law that uses a novel legal strategy to effectively ban all abortions after the sixth week of pregnancy. Legal analysts say it's less clear which direction the justices are leaning in that case, but whatever they decide could be rendered essentially moot if Dobbs ends with Roe being overturned.
Abortion would suddenly become a central issue in every election in the country
“If you get rid of Roe, every single state will need a position on fetus viability, weeks when you can/can't have an abortion, parental notification, sonograms and possible exceptions (like on rape, incest or threat to the mother's life). And every single primary and general election could be dominated by those specific positions.” — Chuck Todd, Mark Murray and Ben Kamisar,
The fight over abortion rights could tear the country apart
“If Roe is reversed — if the court rules, as its most conservative justices have argued, that no protected right to reproductive choice exists — then the political cold war over abortion will flare immediately into a roaring blaze.” — Eugene Robinson,
Returning the power to voters will lead to a calming of tensions around abortion
“The politics of abortion isn’t the Court’s concern. Such a profound moral question, in a democracy, should not be determined by unelected judges. Roe and its progeny didn’t end America’s abortion debate. It merely embittered it, damaging the Court in the bargain. It’s time for the Justices to bow out and let the people decide.” — Editorial,
A state-by-state stasis could be quickly reached
“In the bluest states, where voters are most supportive of abortion rights, nothing would change in the post-Roe world. Red states would move to restrict abortion, but there’s a good chance that these measures would be popular locally. ... It could be, then, that the decentralized nature of the American system ... comes up with an arrangement on abortion that is broadly acceptable to most people.” — Rich Lowry,
The end of Roe is the first step of a much larger campaign for abortion opponents
The partisan split over the legitimacy of the Supreme Court will become more pronounced
“Overruling Roe would likely cut against popular opinion — well over half of Americans do not want abortion rights eliminated — putting the Court at risk of a backlash that could damage its public standing and jumpstart conversations about court reform.” — Mary Ziegler,
The Supreme Court may soon reconsider other established rights
“But far more than the right to abortion, Mississippi’s victory in this case would upend bodily autonomy, privacy and substantive due process rights. With one fell swoop, the right to contraception (Griswold v. Connecticut), the right to be gay (Lawrence v. Texas), marriage equality (Obergefell v. Hodges), trans rights (Bostock v. Clayton County) and the right to an interracial marriage (Loving v. Virginia) could once again be threatened.” — Robin Epley,
The reproductive rights movement will be emboldened to find new ways to defend access to abortion
“The Roe decision in 1973 marked a stunning defeat for people who opposed abortion, and it sparked a massive uprising. ... The anti-abortion movement will likely face its own cataclysm by June of next year. What was clear Wednesday is that a group of committed abortion rights supporters is ready to fight to ‘liberate abortion’ beyond Roe.” — Amy Littlefield,
Voter suppression could prevent a post-Roe backlash against the GOP
“If the Republican-appointed justices — only one of whom was appointed by a president who originally won the popular vote — sound somewhat cavalier about stripping half the country’s population of a fundamental constitutional right, well, they have good reason to be confident. They have engineered a system that allows ‘the people,’ whose will they invoke with venomous cynicism, little power to respond.” — Adam Serwer,
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