Where the abortion fight goes from here: Roe overruled, but the battle will continue
After Friday's ruling, states will have more leeway to draw lines between the interests of the pregnant person and the fetus. The question now is: Where do conservative states go from here?
- Experts predict new laws and new lawsuits across the country.
- Professor: "There's this roaring river of controversy over Roe. That river will just be dashed into 100 streams."
- Battles could already be brewing in Missouri, Michigan, Indiana, Texas and a number of other states.
WASHINGTON – The decades-long fight over Roe v. Wade may be over, but the courtroom battles about abortion are not.
In a decision with enormous consequences for reproductive rights, the Supreme Court on Friday overruled its landmark Roe decision that established a constitutional right to abortion in 1973. Though that will make it more difficult for millions of Americans to obtain the procedure, it won’t end the legal wrangling over how far conservative states may go to try to curb abortion more broadly.
Speaking to USA TODAY minutes before the decision was handed down, Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said the ruling would allow anti-abortion advocates to be ambitious across the country.
"We're going to go through every single state with our allies there and decide how ambitious can we be in this state," she said.
Experts predict new laws and lawsuits will quickly crop up over whether states can clamp down on medication abortions, which account for 54% of terminated pregnancies. Some conservative lawmakers are flirting with banning people from obtaining an abortion in more liberal states. Other lawsuits will probably emerge challenging abortion laws under state constitutions.
"There's this roaring river of controversy over Roe," Sherif Girgis, a professor at Notre Dame Law School, said in an interview before the court’s decision. "That river will just be dashed into 100 streams."
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The nation's highest court ruled Friday that a Mississippi law banning most abortions after 15 weeks of pregnancy is constitutional, even though its prior decisions in Roe and Planned Parenthood v. Casey, a case in 1992, established a different timeline that allowed the procedure until about 23 weeks. To resolve that conflict, a majority of the court ruled that its precedents were based on a faulty reading of the Constitution.
"We hold that Roe and Casey must be overruled," Associate Justice Samuel Alito wrote for a 6-3 majority. "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."
That outcome, which closely mirrored a leaked draft opinion in the case this year, will shift focus to the states – about half of which have laws banning abortion or are likely to pass them quickly. The other half have protections or will probably soon move to protect the right to abortion for their residents. Experts said the bifurcated system could lead to challenges in state and federal courts.
In Michigan, anticipating the Supreme Court’s decision, state courts wrestled with whether a 1931 law banning most abortions could be enforced in the absence of Roe. A Michigan judge preemptively blocked enforcement of that law May 17, asserting that abortion rights are probably protected under the state’s constitution.
Missouri eyed a law this year that would discourage residents from crossing into neighboring Illinois or other states for the procedure. Those measures, should they become law, would run up against challenges based on the federal government’s power to regulate interstate commerce, as well as the rights of Americans to travel from state to state. Legal experts said there is considerable gray area in some of the rights most Americans take for granted.
"The law is very underdeveloped in this area," David Cohen, a professor at the Thomas R. Kline School of Law at Drexel University, said this year about the interstate legal issues potentially raised by such laws.
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Nineteen states require clinicians to be physically present when they provide a medication abortion, according to the Guttmacher Institute, a research group that supports abortion rights. Two states – Indiana and Texas – set outright bans on medication abortion at certain points in pregnancy. Not only could those laws be challenged, but enforcing them will be difficult in situations where abortion drugs are sent by mail.
If the high court had gone in another direction, predicting the legal fights would have been more straightforward. A majority of the court could have upheld Mississippi’s 15-week ban but limited the constitutional right established in Roe and later cases rather than overturning it. That would have set up a series of challenges over bans at earlier points in pregnancy, such as Arkansas’ ban at 12 weeks or Oklahoma’s ban at six weeks. Texas approved a ban on most abortions after six weeks.
In other words, it would have renewed a question that has vexed courts for decades: where to draw lines between the interests of the pregnant person, the fetus and the state.
After the ruling in the Mississippi case, states will have more leeway to weigh those competing interests. The big question is where conservative states go from here.
The court must figure out whether there is "any limit on what states can do," Mary Ziegler, a visiting professor at Harvard Law School, said in an interview before the opinion was released.
Could a state, Ziegler posed as an example, ban abortion without an exception for the life of the mother?
"Eventually," Ziegler predicted, "there'll be anti-abortion groups arguing that blue state abortion laws are unconstitutional."