What Overturning Roe v. Wade Means to Abortion Rights in U.S.

(Bloomberg) -- A bombshell report suggests the U.S. Supreme Court could be about to overturn Roe v. Wade, which protects the constitutional right to abortion. That’s according to a leaked draft majority opinion circulated inside the court, reported by Politico and confirmed by the court as authentic, though by no means final. The court has heard multiple cases in recent years from states trying to narrow the right to have an abortion, one of the nation’s most contentious issues. The latest case is more sweeping than most: Mississippi is fighting to ban abortion in almost all instances after 15 weeks of pregnancy. The decision could clear the way for prohibitions in much of the U.S. 

1. What’s in the draft opinion?

The draft opinion suggests that the court’s strengthened conservative majority is ready to go even further by overturning Roe v. Wade, leaving it to individual states to decide whether abortions are allowed, and in what circumstances. “Roe was egregiously wrong from the start,” says the draft opinion, which was written by Justice Samuel Alito and has at least preliminary support from four other Republican-appointed justices, according to Politico. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Disclosure of the draft opinion marks an extraordinary breach of protocol for an institution that has long prided itself for being almost leak-proof.

2. Will abortion become illegal in the U.S.?

Not everywhere, but if Roe is overturned, there will no longer be a nationwide constitutional right to have an abortion. According to the Guttmacher Institute, which researches sexual and reproductive health and rights globally, 26 states are “certain or likely” to ban abortion if Roe v. Wade is overturned. More than 20 already have abortion bans or restrictions on the books, ready to take effect should Roe’s protections be lifted.

3. What will happen if Roe v. Wade is overturned?

Women living in states where abortions are banned might need to travel lengthy distances to receive treatment in another state -- if they can even afford to do so. Companies with operations in states that outlaw abortion might come under more pressure to help their employees access the reproductive care services they’ve been entitled to for half a century. When Texas last year banned most procedures after the six-week mark, some companies with employees in the state offered assistance to workers seeking abortions elsewhere, including Citigroup Inc. 

4. Can’t women still use the abortion pill?

That pill, approved in 2000, has failed to take off in the U.S. in the two decades that it has been on the market. Some two-thirds of women don’t even know medication abortion exists, according to the Kaiser Family Foundation. That’s likely because the U.S. Food and Drug Administration imposed a labyrinth of restrictions on the drug, making it hard for a doctor to prescribe. These restrictions aren’t in step with its safety profile: The pill sends fewer people to the emergency room than Tylenol or Viagra. States have also piled on abortion pill bans and limitations on mailing the medication. If Roe v. Wade were to be overturned, the abortion fight is likely to shift squarely to the pill. Conservative lawmakers will likely find medication abortion to be much harder to control than abortion clinics.

5. What would be the political fallout?

A ruling overturning Roe would be legally, politically and socially transformational. A majority of the U.S. public has consistently supported keeping abortion legal in all or at least some cases since the mid-1970s, according to Gallup data, while only about one in five Americans say the procedure should be illegal under all circumstances. Other polls show similar trends. A Marquette University poll earlier this year found that 72% of Americans oppose overturning the Roe v. Wade ruling. News of the draft ruling came one day ahead of primary voting in Ohio and Indiana. Overturning Roe could completely shake up midterm elections in November that were set to be a referendum on inflation, crime, immigration and Covid-19. The court is expected to rule by July in the case. 

6. How did we get here? 

The landmark 1973 Roe v. Wade ruling established that the decision to terminate a pregnancy was a woman’s choice to make in the first trimester, and that the state could regulate abortions only later. In the Planned Parenthood v. Casey case in 1992, the Supreme Court revisited the timing issue, saying women have the right to abortion without undue interference before a fetus is viable — that is, capable of living outside the womb. The court didn’t pinpoint when viability occurs but suggested it was around 23 or 24 weeks. Mississippi originally asked the court to throw out the viability standard without necessarily overturning Roe. After Justice Amy Coney Barrett was confirmed -- giving the court a 6-3 conservative majority -- the state decided to go further and directly ask the court to overrule Roe and Casey. 

7. How common is abortion in the U.S.?

According to a 2019 report by the Guttmacher Institute, in 2014 almost 20% of pregnancies ended in abortion. At that rate, an estimated one in four U.S. women would have an abortion over the course of their lifetime. The abortion rate -- the number of procedures per 1,000 women of childbearing age -- fell 20% between 2011 and 2017, a drop the institute said had more to do with overall declines in pregnancies than with the rise in abortion restrictions. In the five states with the lowest abortion rates, at least 28% of women receiving abortions had traveled to another state to obtain one. 

The Reference Shelf

• An article and timeline on Supreme Court abortion decisions from the Pew Research Center and the Guttmacher Institute’s 2019 report on abortion incidence and availability.
• Related QuickTakes on the Mississippi and Texas abortion cases at the Supreme Court.
• The CDC’s latest report on abortion in the U.S.
• How U.S. companies are supporting workers on abortion.

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