Roe v. Wade has been overturned. What happens now?
WASHINGTON - Roe v. Wade has been struck down. Access to abortion services is no longer guaranteed as a right in the United States. The nearly 50-year-old Supreme Court precedent was overturned Friday, leaving the legality of abortion, for now, in the hands of each individual state.
Everyone has known this was coming for long enough - since the nearly unprecedented leak of a draft opinion in early May - that the Supreme Court itself has had time to fortify its physical defences against potentially ugly protests. Everyone from advocates to state lawmakers to the White House has had fair warning this was coming, and to prepare their own response.
So what happens next?
In vast swaths of the U.S., abortion becomes illegal, immediately.
Thirteen American states have so-called trigger laws" on the books that were passed to outlaw all or nearly all abortions immediately upon the reversal of Roe v. Wade, and another seven states have pre-Roe laws still on the books that become operative again now that the Supreme Court precedent invalidating them has been overturned. In all, the Guttmacher Institute suggests, 22 states have laws already in place that could be used to immediately restrict abortion.
Abortion will remain legal elsewhere in the country, including in the 16 states and the District of Columbia, which have laws explicitly protecting abortion access.
In pretty much every state, however, abortion has once again become a ballot-box issue - and particularly in the 14 states which have neither strong protections nor prohibitions already in place.
Take Pennsylvania for instance, a swing state in almost every respect: the Republicans who control the state legislature have sworn to outlaw abortion. The Republican candidate for governor, Doug Mastriano, recently called abortion protections science-denying genocide" and promised a heartbeat bill" that would ban all abortions after about six weeks of pregnancy - a time before many women even know they are pregnant. The Democratic candidate for governor, Josh Shapiro, has promised to veto any law that bans abortion earlier than 24 weeks. That makes abortion immediately one of the biggest issues in the November gubernatorial election - Democrats last month launched a $6-million ad campaign targeting Mastriano's desire to ban abortion as virtually the first act of the campaign.
It's a fight that will be playing out similarly in states across the country - and federally, in the midterm congressional elections, too.
Democrats failed last month to pass a federal law codifying Roe v. Wade's protections, which could not overcome a Senate filibuster. Democrats hope to mobilize women and young voters who have long taken Roe's protections for granted to elect members of Congress who will pass federal abortion protections - promising that, with just a few more senators, they can and will overcome the filibuster.
Republicans have long relied on the large and singularly focused anti-abortion wing of their party to turn out and vote, and probably will expect that, too - some supporters and candidates are likely hoping to enact a federal abortion ban.
However, with Republicans seemingly poised to win control of Congress in the midterm elections on the strength of President Joe Biden's unpopularity due to issues such as inflation and fears of a looming recession, few Republicans will be stressing any federal abortion policy during the campaign. A majority of American voters opposed overturning Roe v. Wade, according to polls, and support at least some access to abortion. Support for abortion protections has only gone up since the draft opinion was leaked. Republican will hope, in this election year, that other concerns dominate the campaign year and abortion fails to be a motivating issue.
In the meantime, Biden will likely attempt to take some action to protect abortion access immediately, although he is limited in what he can do on his own. In the weeks leading up to the Supreme Court's decision being released, Biden said he was considering actions by executive order or federal regulation, such as establishing abortion services on federal lands and increasing access to abortion pills.
In the longer term, and through a broader legal lens, the decision could also lead to courtroom fights over other rights that have long been taken for granted in the U.S. The leaked draft opinion contained explicit language from Justice Samuel Alito that said the decision would not cast doubt on precedents that do not concern abortion." But contrary to that straightforward statement, the logic of the court's decision to overturn abortion protections invalidates the court's previous opinions about a constitutional right to privacy - which was not just the basis for Roe v. Wade, but for court decisions that legalized birth control for married couples, sexual acts between consenting adult men and same-sex marriage. The Biden White House has warned it thinks the court's decision could jeopardize these rights, and even the right to interracial marriage.
It will be some time before all of the legal, political and social ramifications of the court decision overturning Roe v. Wade become clear. What is obvious, however, is the dramatic impact it will have on reshaping the lives of millions of people facing unwanted pregnancies, and a corresponding immediate impact on electoral politics.
In a deeply polarized country, where how people talk, vote and think increasingly depends on where they live, it will be one of the most dramatic moves toward a country divided by state boundary lines, one in which the rights Americans enjoy - even over their own bodies - depend on which state they live in. There is nothing new about that in American history, but over the past half century and more, most legal momentum has been towards eliminating such state-by-state disparities. With a single court decision, that momentum has been reversed.
Edward Keenan is the Star's Washington Bureau chief. He covers U.S. politics and current affairs. Reach him via email: ekeenan@thestar.ca