In jeopardy?
Justice Ruth Bader Ginsburg’s death may change the political balance of the court, but even if conservative Amy Coney Barrett is confirmed to replace her, it won’t guarantee the repeal of Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Historically, Supreme Court justices are reluctant to overturn major precedents, and only one current justice, Clarence Thomas, has unequivocally stated that he believes Roe v. Wade and a companion ruling, Planned Parenthood v. Casey, should be overturned. Barrett has given mixed signals about whether she’ll vote to overturn Roe if she’s confirmed. In 2013, she said she thought it “very unlikely at this point that the court is going to overturn [ Roe],” and that the principle “that the woman has a right to choose abortion will probably stand.” But as a devout Catholic, she has made her personal opposition to abortion clear: She once signed an ad from a pro-life group describing legal abortion as “barbaric.” Kelley Robinson, executive director of the Planned Parenthood Action Fund, said that if Barrett is confirmed, an emboldened 6-3 conservative majority may overturn Roe. “People are understanding that this is real,” Robinson said.
How would repeal happen?
There are several cases now making their way to the court that could provide a basis for a Roe reversal, including a near-total ban on abortions in Alabama that has already been signed by Gov. Kay Ivey, as well as a case brought by Whole Woman’s Health challenging a prohibition of the dilation and evacuation (D&E) method of abortion. Should Roe fall, the matter would revert to the states. Nearly a dozen states have passed “trigger” laws that will make all, or most, forms of abortion illegal the moment Roe is repealed. Seven have passed laws stating their intent to restrict abortion to the fullest extent allowed. Ten other states have passed laws ensuring abortion’s legality. If Roe falls, says the Center for Reproductive Rights, abortion will become illegal in 24 states and three territories, and remain legal in another 21 states. Five states could go either way. In a post- Roe country, women in conservative states could still get abortions if they were willing to go to another state—and could afford to. But a woman living in, say, Mississippi might have to drive as many as 10 hours in order to have the procedure.
Can Congress intervene?
If Roe were to fall, Congress could pass a national law either legalizing or pro
Regulating providers out of business
Many legal analysts think it’s more likely a
6-3 conservative majority will uphold ever more restrictive state laws on abortion than repeal Roe altogether. So-called TRAP laws, or targeted regulation of abortion providers, place costly and logistically difficult burdens on abortion providers to the point where they are effectively prohibited from practicing. Five states—Mississippi, Missouri, North Dakota, South Dakota, and West Virginia—have only a single abortion provider. For 27 U.S. cities with more than 50,000 people, there is no abortion provider within 100 miles. In June, the court ruled 5-4 that a Louisiana TRAP law that would have required abortion providers to maintain admitting privileges at a hospital was unconstitutional and would have created burdens that “would fall disproportionately on poor women,” as Justice Stephen Breyer wrote for the majority. The 2014 law, had it been upheld, would have left Louisiana with only a single abortion provider, in New Orleans. The court, said Diana Kasdan, senior staff attorney at the Center for Reproductive Rights, “does not have to overturn Roe to fully undermine the right to abortion.”