Where the abortion fight goes from here: Roe overruled but the battle will continue

·5 min read

WASHINGTON – The decades-long fight over Roe v. Wade may be over but the courtroom battles about abortion are not.

In a decision with enormous consequences for reproductive rights, the Supreme Court on Friday overruled its landmark Roe decision that in 1973 established a constitutional right to abortion. While that will make it more difficult for millions of Americans to obtain the procedure, it won’t end the legal wrangling over how far conservative states may go to try to curb abortion more broadly.

Speaking to USA TODAY minutes before the decision was handed down, Marjorie Dannenfelser, president of the Susan B. Anthony SBA Pro-Life America, said that the ruling would allow anti-abortion advocates to be ambitious in states across the country.

"We're going to go through every single state with our allies there and decide how ambitious can we be in this state," she said.

Experts predict new laws and lawsuits will quickly crop up over whether states can clamp down on medication abortions, which account for 54% of terminated pregnancies. Some conservative lawmakers are already flirting with banning people from obtaining an abortion in more liberal states. Other lawsuits will likely emerge challenging abortion laws under state constitutions.

"There's this roaring river of controversy over Roe," Sherif Girgis, a professor at Notre Dame Law School said in an interview before the court’s decision. "That river will just be dashed into 100 streams."

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The nation's highest court ruled Friday that a Mississippi law banning most abortions after 15 weeks of pregnancy is constitutional, even though its prior decisions in Roe and a subsequent case in 1992 established a different timeline that allowed the procedure until about 23 weeks. To resolve that conflict, a majority of the court ruled that its earlier precedents were based on a faulty reading of the Constitution.

"We hold that Roe and Casey must be overruled," Associate Justice Samuel Alito wrote for a 6-3 majority. "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."

Moments after the Supreme Court issued a decision in a Mississippi abortion case that overturned Roe v Wade.
Moments after the Supreme Court issued a decision in a Mississippi abortion case that overturned Roe v Wade.

That outcome, which closely mirrored a leaked draft opinion in the case earlier this year, will shift focus to the states – about half of which already have laws banning abortion or are expected to pass them quickly and another half of which have or will likely soon move to protect the right to abortion for their residents. Experts say the bifurcated system could soon lead to challenges in state and federal courts.

In Michigan, anticipating the Supreme Court’s decision, state courts already were wrestling with whether a 1931 law banning most abortions could be enforced in the absence of Roe. A Michigan judge pre-emptively blocked enforcement of that law on May 17, asserting that abortion rights are likely protected under the state’s constitution even if Roe was overturned.

Anti-abortion protesters celebrate following Supreme Court's decision to overturn Roe v. Wade, ending the federally protected right to abortion, in Washington, Friday, June 24, 2022.
Anti-abortion protesters celebrate following Supreme Court's decision to overturn Roe v. Wade, ending the federally protected right to abortion, in Washington, Friday, June 24, 2022.

Missouri, meanwhile, already eyed a law this year that would discourage residents from crossing into neighboring Illinois or other states for the procedure. Those measures, should they become law, would run up against challenges based on the federal government’s power to regulate interstate commerce as well as the rights of Americans to travel from state to state. But legal experts say there is considerable gray area in some of those rights that most Americans take for granted.

"The law is very underdeveloped in this area," David Cohen, a professor at the Thomas R. Kline School of Law at Drexel University, said earlier this year about the interstate legal issues potentially raised by such laws.

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Nineteen states require clinicians to be physically present when they provide a medication abortion, according to the Guttmacher Institute, a research group that supports abortion rights. Another two states – Indiana and Texas – set outright bans on medication abortion at certain points in pregnancy. Not only could those laws be challenged, but enforcing them will be difficult in situations where abortion drugs are sent by mail.

If the high court had gone in another direction, predicting the future legal fights would have been more straightforward. A majority of the court could have upheld Mississippi’s 15-week ban but limited the constitutional right established in Roe and later cases rather than overturning it. That would have set up a series of challenges over bans at earlier points in pregnancy, such as Arkansas’ ban at 12 weeks or Oklahoma’s ban at six weeks. Texas had approved a ban on most abortions after six weeks.

In other words, it would have renewed a question that has vexed courts for decades: Where to draw lines between the interests of the pregnant person, the fetus and the state.

But now, after the ruling in the Mississippi case, states will have more leeway to weigh those competing interests. And the real question is where conservative states go from here.

The court must now figure out is "there any limit on what states can do," Mary Ziegler, a visiting professor at Harvard Law School, said in an interview before the opinion was released.

Could a state, Ziegler posed as an example, ban abortion without an exception for the life of the mother.

"Eventually," Ziegler predicted, "there'll be anti-abortion groups arguing that blue-state abortion laws are unconstitutional."

This article originally appeared on USA TODAY: Roe v. Wade: Abortion to remain divisive issue in states, courts

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