Overturning Roe would hand power over abortion to states. Many would ban it.

 A U.S. Supreme Court ruling striking down a nearly 50-year-old right to abortion would lead to strict restrictions or bans by states across nearly half the country almost immediately.

The court is poised to overturn the landmark 1973 case Roe v. Wade, as well as a subsequent ruling on fetal viability, according to an initial draft of a majority opinion in a pending abortion case published Monday by Politico. 

The draft is not final, and could change before the court issues a ruling, but the revelation ignited a push among Democrats — including a group of 17 governors — to codify abortion protections under federal law. 

If made final, the court opinion would create a patchwork of legal abortion access across the country by leaving policymaking to the states, 26 of which are poised to immediately ban the procedure or place severe restrictions on it, according to an analysis from the Guttmacher Institute, a pro-reproductive rights research group. The states are concentrated in the South and Midwest.

A group of Democratic governors, led by Wisconsin’s Tony Evers, wrote a letter to congressional leaders Tuesday asking them to pass a federal law protecting abortion access.

“Our collective responsibility to defend access to reproductive healthcare, including abortion, has never been more important,” the letter said. 

“Overturning Roe will turn back the clock on reproductive health, and Congress must immediately take action to ensure that our nation does not go backward and that the rights of all Americans to access reproductive healthcare and abortion continue to be protected.”

The letter was signed by governors including Evers, Jared Polis of Colorado, Gretchen Whitmer of Michigan, Tim Walz of Minnesota, Steve Sisolak of Nevada, Phil Murphy of New Jersey, Michelle Lujan Grisham of New Mexico, Roy Cooper of North Carolina, Kate Brown of Oregon and Tom Wolf of Pennsylvania.

Alito draft

The draft opinion, written by Justice Samuel Alito, leaves no doubt that it seeks a direct reversal of Roe as well as Casey v. Planned Parenthood, a 1992 ruling that relied on the 1973 ruling as precedent to uphold abortion rights.

“We hold that Roe and Casey must be overruled,” the draft says. “The Constitution makes no reference to abortion, and no such right is implicitly protected … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Those elected representatives have taken vastly different approaches to abortion policy, but 26 states are likely or nearly certain to ban or restrict access, according to Guttmacher. 

Seven other states, including Colorado, Maryland, New Jersey and Oregon, have enacted laws this year to protect abortion rights.

The mostly Republican-led states poised to restrict abortion access either never repealed dormant pre-Roe restrictions that would go back into effect if the ruling is overturned; enacted “trigger laws” that would ban or severely restrict abortion conditional on a decision overturning Roe; or enacted restrictions after Roe that haven’t been enforced but would become enforceable if Roe was overturned.

Enacting anti-abortion measures at the state level in preparation for Roe’s nullification has been a priority of groups opposed to abortion rights.

“Anti-abortion advocacy groups have been really great about getting cookie-cutter legislation to the states,” said Grace Howard, an assistant professor of justice studies at San Jose State University.

Threatening other rights

Legal observers expected a ruling overturning or significantly weakening Roe, but the breadth and extremity of the draft opinion was surprising.

The opinion was dated Feb. 10 and marked as a first draft. To attract enough justices to take effect, it would likely need to be moderated, said Carrie N. Baker, a professor of gender studies at Smith College, who pointed out the leaked document is only a draft. 

“It’s clearly Alito’s wish opinion.” she said. “I have a hard time believing he’s going to get everybody on board because it’s quite an extreme opinion. But it’s very shocking. It’s appalling. It makes what we know is coming all the more real.”

Politico reported that “a person familiar” with court deliberations said four other conservative justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — voted with Alito in the conference held among justices following the Dec. 1 oral arguments and the “lineup remains unchanged as of this week.” 

The legal reasoning — that any right not explicitly described in the Constitution or protected at the founding of the country could not be implied by other rights — threatens a whole range of protections the court has upheld, including access to contraception, interracial marriage and gay marriage and sex, legal experts said.

President Joe Biden on Tuesday noted the wider threat to other implied rights.

“If the rationale of the decision as released were to be sustained, a whole range of rights are in question — a whole range of rights,” he said. “And the idea we’re letting the states make those decisions, localities make those decisions would be a fundamental shift in what we’ve done.” 

Howard said she expects a trend of abortion criminalization to increase if Roe is overturned.

Her research focuses on the criminalization of pregnancy in the U.S. where she specifically looked at three states: Alabama, Tennessee and South Carolina from the enactment of Roe in 1973 to 2015. 

She found hundreds of cases where mothers were jailed under circumstances people who were not pregnant would not be subject to, including non-consensual drug tests.

“The leaked draft of the Dobbs opinion blasts that door wide open,” she said. “And when that goes into effect, if it looks anything like this draft did, we’re gonna see a lot more of that kind of stuff happening.”

She said patients who continue to suffer under those conditions typically include low-income pregnant people and Black birthing patients. Even under Roe, states have prosecuted cases against mothers, she said.

In a statement, former President Barack Obama and first lady Michelle Obama highlighted the broad powers the ruling would give states to enact wide-reaching bans.

“Under the Court’s logic, state legislatures could dictate that women carry every pregnancy to term, no matter how early it is and no matter what circumstances led to it — even rape or incest,” the Obamas said.

Congressional action

On the steps of the U.S. Capitol Tuesday, Senate Democrats condemned “right-wing justices” and vowed to bring a vote on the Senate floor to codify the abortion protections of Roe.

Sen. Debbie Stabenow said Tuesday overturning Roe would “have grave consequences” for everyone. The law in her home state of Michigan would revert to a 1931 statute that made getting an abortion a felony, with no exception for incest or rape. 

“Imagine what this would mean for a 12-year-old in Michigan who is raped,” Stabenow said.

Senate Majority Leader Chuck Schumer, Democrat of New York, said that he expects reproductive rights to be a major issue for voters in midterm elections in November.

Roe didn’t guarantee access

Even with Roe in place, not all pregnant patients have had equal access to abortion, said Derek Siegel, a Ph.D. candidate in sociology at the University of Massachusetts-Amherst who studies race, gender and reproduction. Siegel uses they/them pronouns. 

“Roe v. Wade has never been a reality for most people in the U.S.,” they said. “Abortions are extremely expensive because of the Hyde amendment prohibiting federal funds to going towards abortion. That doesn’t even include travel, lodging and child care costs.”

The Hyde Amendment has been attached to federal funding bills every year since 1977 to prevent the use of Medicaid funds for abortion care, except in extreme cases.