With states from Alabama to Missouri passing laws that would restrict or nearly ban a women’s right to abortion, is a women’s right to choose at risk of being overturned on the federal level?
This week alone, Alabama Gov. Kay Ivey signed a bill into law that, if it’s implemented in six months’ time, will serve as a near total ban on abortion—except in cases where the mother’s life is at risk. The bill noticeably excludes exceptions for cases of rape and incest, and a doctor who illegally performs an abortion could face up to 99 years in prison.
Meanwhile in Missouri, the state Senate passed a bill that would ban abortions after eight weeks of pregnancy. It similarly only allows exceptions in the case of a medical emergency, and doctors could face five to 15 years in prison for violating the law. Unlike the Alabama law, it still needs to go back through the state House before it can be approved by Gov. Mike Parson.
In recent months, a number of other states have passed ‘heartbeat’ bills, which prohibit abortions once a fetal heartbeat is detected, often as early as six weeks into pregnancy—before many women even know they’re pregnant.
The common theme of all of these bills? They are more restrictive than current federal law, as stipulated by Roe v. Wade.
The Roe v. Wade Decision
After Roe was decided in 1973, the Court divided a woman’s pregnancy into three trimesters: in the first trimester, the decision to have an abortion would be at the woman’s discretion; during the second trimester, the state could “regulate procedure,” but not ban abortion. In the third trimester, when the fetus was considered “viable,” the state was permitted to regulate or prohibit abortion, allowing for exceptions when the mother’s health was at risk.
In the years since, states and interest groups have sought to overturn the ruling or further restrict access. One such effort reached the Supreme Court in 1992, a case called Planned Parenthood of Southeastern Pennsylvania v. Casey. The justices ruled reaffirming Roe v. Wade, but upheld a handful of regulations, including a 24-hour waiting period and a requirement that minors get consent of at least one parent before getting an abortion—and this ruling has effectively become today’s precedent on abortion.
Despite this precedent, states have continued to seek to further regulate abortion at the state level.
Mary Ziegler, Florida State University College of Law professor and author of After Roe, explained that states can—and do—do things that are technically unconstitutional.
“Unless someone actually challenges them, then nothing happens,” she said.
There are many constitutional law cases where a court may even review legislation that the state has passed and decide it’s not unconstitutional.
So what happens when these unconstitutional laws are passed—and could they eventually serve to dismantle the precedent set by Roe v. Wade?
It’s complicated.
Abortion on the State Level
The Alabama law is unique, as Melissa Murray, NYU Professor of Law, notes that it is “intended as a provocation” and is therefore “purposefully extreme.”
The Alabama state legislature passed the most restrictive bill with the hope of it being challenged to force the courts to question whether Roe v. Wade is a legitimate precedent.
It is widely expected that the bill will be challenged before it goes into effect, at which time the case would go to federal district court. If it’s litigated, then it could go to the 11th circuit appellate court, and that decision in turn could be appealed by either side, and then make its way to the Supreme Court.
Laurence Tribe, professor of law at Harvard University, explains that a law such as that in Alabama is “clearly in conflict with Supreme Court precedent.”
As such, it is likely that it would be struck down by the lower courts, because they are “bound by Supreme Court precedent even if they predict that precedent might be overturned by the Court.”
“Even if one or two circuits are outliers and uphold one of the really extreme laws,” Tribe added, “the Court isn’t bound to grant review and probably would avoid doing so at least until after the 2020 election.”
This is because the Supreme Court is discretionary, meaning it can decide whether or not to hear a case—it requires the support of four justices for a case to be added to the docket. If in this instance the Supreme Court chooses instead not to hear the case, then the opinion of the 11th circuit would become law.
Abortion on the Federal Level
Experts are largely in agreement that if Roe v. Wade were to be substantially altered or overturned, it would not be through the Alabama case. It is instead more likely that the Court will make incremental changes to the law.
Ziegler notes that she thinks there’s a “pretty good chance” that the Supreme Court will eventually change the abortion doctrine so substantially that “it’s no longer recognized in the way it is now.”
However, she argued that it would be unlikely to uphold the Alabama law as that would entail “getting rid of Roe in one shot” and the Court wants to “not appear to be political.”
Instead the Court may start by upholding laws that don’t go as far, “chipping away gradually at Roe and setting the stage for overturning it.”
Tribe also doubts that “laws as extreme as Alabama’s” would be heard by the Supreme Court, explaining that it is more likely to “nibble away at the edges of Roe v. Wade and Planned Parenthood v. Casey than to toss a nuclear bomb into the law established by those precedents in 1973 and 1992.”
Carolyn Shapiro, an associate professor at the Chicago-Kent School of Law is “confident” that other cases that involve significant restrictions to abortion will make their way to the Supreme Court—there are already several making their way through the courts.
In fact, the Supreme Court is expected to decide in the coming months whether to hear one such case, June Medical Services v. Gee, which challenges a Louisiana law that effectively closes most of the abortion clinics in the state.
A case such as this one is “highly restrictive, but doesn’t purport to restrict abortion,” Shapiro explains, making it more likely that it would make its way to the Supreme Court and be upheld.
It is “making access to abortion more difficult by design…without the public trigger of saying that they’re overruling Roe v. Wade.” Plausible deniability, in other words.
Overturning Roe v. Wade
While these cases likely won’t impact Roe on a federal level, they could still pave the way for states to have more freedom in determining abortion law. The Court could overturn or weaken protections that are enshrined in Roe, which would give states leeway to restrict abortion access at the state level.
But Robert Nagel, professor of constitutional law at University of Colorado, believes that the importance of precedent will prevent the Court from going as far as dismantling Roe v. Wade.
While he notes that the Supreme Court does have the power to go back and reverse earlier decisions, he thinks that there are a “good number of people on the Court who regard it as such an important institution and believe respect for it is so important” that they would effectively be inclined to repeat what happened in the Casey case.
In that case, several of the justices explained in their ruling that while they believed that Roe itself was wrongly decided, there were institutional and political reasons that it would be inappropriate for them to reverse the decision after so many years had passed.
Nagel therefore believes that even if some of the current justices similarly don’t agree with Roe, their respect for the institution of the Court and precedent outweigh their interpretations of the law.
Chief Justice John Roberts has demonstrated the weight he gives to precedent, as evidenced by a concurring opinion in the 2010 Citizens United decision. In it, he wrote, “Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function….For these reasons, we have long recognized that departures from precedent are inappropriate in the absence of a “special justification.”
He went on to note that stare decisis is not an “inexorable command,” but rather a “principle of policy,” meaning that “in the unusual circumstance when fidelity to any particular precedent does more to damage the constitutional ideal than to advance it, we must be more willing to depart from that precedent.”
So for a woman’s right to abortion to be no longer protected—and the decision in Roe v. Wade reversed—a case such as any of those mentioned above would need to reach the Supreme Court. The Court in turn would need to agree to hear the case and revisit its precedents.
A majority of justices would then have to rule that the interpretation of the law as set forth in Roe was mistaken and therefore offer a new interpretation of the Constitution and issue a new opinion. A high-profile, landmark case like Roe v. Wade is so etched in the public consciousness, however, that it would take a lot for the Court to decide to overturn it entirely rather than make incremental changes.
For the time being, don’t expect abortion to suddenly be outlawed. (It is still legal in all 50 states.) Even in the case of the Alabama bill, an injunction is likely while the case is being adjudicated, meaning that the law will not go into effect until the court has ruled on the matter.
It could be years before we see any substantive changes to the law, but remember—there’s a difference between outlawing abortion and severely restricting it.
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