President Donald Trump is about to pick a new Supreme Court justice. What happens if the court scraps Roe v. Wade?
Dan HornEditor’s note: This article updates an earlier analysis on Roe v. Wade.CINCINNATI — The Alabama Senate has passed a bill criminalizing nearly all abortions, approving one of the most sweeping restrictions in the United States that could put abortion providers in prison for life.The passage follows a flurry of anti-abortion developments including “fetal heartbeat laws” in Ohio, Georgia, Kentucky and Mississippi. The goal is to produce lawsuits that work through lower courts and, ultimately, to the nation’s highest court. The Supreme Court isn’t likely to overturn its landmark Roe v. Wade decision anytime soon, experts say. But ending Roe won’t end abortion in America – or the fight over abortion.Instead, a repeal of Roe would shift the battle from the federal courts to state legislatures, where lawmakers in every state would make their own rules about when, where and under what circumstances women could obtain abortions.States would be free to act because, without Roe, the constitutional right to access abortion would be gone.“All of a sudden, that’s where the venue is,” said James Bopp Jr., general counsel for National Right to Life. “All federal oversight goes away.”Those on both sides of the debate say the result would be a patchwork of new laws, with some states enacting outright bans, others setting tougher restrictions and still others maintaining the status quo.In this new landscape, some women could have access to abortions with few or no restrictions, while others would have to travel hundreds of miles or more to find a clinic in another state.More: Why anti-abortion laws aimed at Supreme Court may not workNo Roe v. Wade? It’s already happeningTo some extent, this is already happening. Republican state lawmakers across the country have been attacking Roe around the edges for years with increasingly restrictive rules, from gestational limits to tougher licensing for clinics.Court challenges based on Roe v. Wade rolled back some of those rules, but not all of them. The new restrictions contributed to the closing of more than 50 clinics nationwide between 2011 and 2014, according to the Guttmacher Institute, which tracks abortion-related data.Ohio, Michigan and Texas each lost at least one-third of their clinics in that time. A handful of states, including Kentucky, Mississippi and Missouri, are down to one clinic.Overturning Roe would accelerate the process, abortion rights activists say, because states would no longer have to worry about a federal judge standing in their way.“The right to access abortion in this country is on the line,” said Dawn Laguens, executive vice president of the Planned Parenthood Federation of America.A recent court case in Ohio offers a hint of how a post-Roe world would work. After the state legislature passed a law banning abortion in cases where a fetus is diagnosed with Down syndrome, U.S. District Judge Timothy Black blocked enforcement of the law.Planned Parenthood in the Cincinnati neighborhood of Mount Auburn has drawn protesters from both sides of the abortion debate. (Photo: Patrick Reddy, The Cincinnati Enquirer)His ruling was based entirely on constitutional protections granted by Roe v. Wade. “A state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” Black wrote.If Roe is overturned, that legal argument would vanish and states like Ohio could make their own rules.“Basically, the question would go to the states,” said Freda Levenson, legal director for the American Civil Liberties Union in Ohio.More: Alabama’s abortion bill could put doctors in prison for life: Here’s what to knowWhich states would ban abortion without Roe? There’s no way to know for certain how many states would ban abortion or institute tougher restrictions if given the chance, but at least a dozen, mostly in the South and Midwest, have given every indication they’re ready to act.Four states, Louisiana, Mississippi, North Dakota and South Dakota, have approved “trigger laws” that would ban abortion immediately after the Supreme Court overturns Roe v. Wade.Roughly a dozen other states appear unlikely to enact tougher abortion laws, and some of those, such as California and Maryland, have laws explicitly protecting the right to access abortion.Bopp said states should be allowed to chart their own course, and overturning Roe is the only way. He said Roe took democracy out of the abortion equation by declaring it a privacy right protected by the U.S. Constitution.Without Roe, he said, the people of every state could decide how tolerant or not they want to be when it comes to abortion.“We’ve had little opportunity for the democratic process to sort this through and develop a consensus,” Bopp said. “It’ll take some time.”In theory, such a process could force state legislatures to compromise. For 45 years, lawmakers on both sides could be as strident as they liked because they knew the courts, ultimately, would sort it out and that Roe would prevent an outright ban.More: How does Alabama’s anti-abortion bill compare to Georgia” law?The new terrain won’t be easyIf Roe goes away, laws that previously would have been rejected by the courts will have real consequences, not only for pregnant women, but for politicians, too.Navigating the new terrain won’t be easy. A Pew Research Center poll last year found most Americans are somewhere in the middle on abortion. Overall, 57 percent said it should be legal in all or most cases and 40 percent said it should be illegal in all or most cases.But those with absolutist views are in the minority: Just 25 percent said abortion should be legal in all cases and 16 percent said it should be illegal in all cases.Views vary from state to state, however, and abortion rights activists say that’s why leaving the decision to lawmakers is a problem. They say an individual’s rights shouldn’t be subject to the beliefs of the majority of voters in the place they happen to live.“Some states probably wouldn’t impose restrictions and some would impose terrible restrictions,” Levenson said. “Some states are poised to go as far as they can.”Follow Dan Horn on Twitter: @danhornnewsAutoplayShow ThumbnailsShow CaptionsLast SlideNext SlideRead or Share this story: https://www.usatoday.com/story/news/politics/2019/05/15/abortion-laws-what-happens-if-supreme-court-overturns-roe-v-wade/3678274002/