Undoubtedly, there would be tumult — likely roiling every statehouse in the nation. Beyond that, little is certain about what would unfold if the Supreme Court overturned Roe v. Wade, the divisive 1973 decision establishing a woman’s right to have an abortion.
Reversal remains only a hypothesis for now, yet both sides in the abortion debate are discussing the demise of Roe as an increasingly serious possibility. President Bush’s nomination of conservative Samuel Alito to replace moderate Justice Sandra Day O’Connor heightens the prospect of tighter restrictions on abortion, and another vacancy could occur any time that might tip the balance on Roe itself.
Roe’s reversal would not outlaw abortion nationwide; the issue would revert to the states, with patchwork consequences. Some states would likely ban almost all abortions, others would allow them to continue unfettered, and a middle group might impose restrictions that would make abortions harder to obtain.
If the pre-Roe past is any guide, affluent women in states with bans would likely find ways to have safe abortions, either traveling to a no-ban state or hiring a doctor willing to flout the law. Abortion-rights activists say poor women would have fewer recourses; some might resort to using cheap, widely available abortion-inducing medicines that didn’t exist before Roe.
“What an appalling thought — American women reduced to going outside the health care system and acting like they’re in a Third World country,” said Dr. Wendy Chavkin, a Columbia University professor who chairs Physicians for Reproductive Choice and Health.
Unintended political consequences?
The political consequences of Roe’s reversal would be complex — and perhaps awkward for some Republicans. Roe has been a longtime target of conservative candidates and advocacy groups; its disappearance would shift the battleground to state legislatures where the actual banning of abortion might trouble some swing voters.
“I’m sure there are some Republicans who’d prefer not to deal with it,” said Bill Saunders, a bioethics expert with the conservative Family Research Council. “Sometimes politicians like to slough off issues to Supreme Court, and criticize the court and not have to deal with it themselves.”
Some anti-abortion groups seek to minimize the immediate impact of Roe’s reversal, suggesting that abortion initially would remain legal in all but six or seven states with pre-Roe bans still on the books.
In contrast, the Center for Reproductive Rights says abortion access would be at high risk in 21 states, notably in the Southeast and Great Plains.
The center’s president, Nancy Northup, noted that South Dakota lawmakers passed a bill this year that would automatically outlaw most abortions if Roe were overturned.
‘It’s going to get ugly’
In some heartland states, however, moves to ban abortion could trigger political free-for-alls.
“I don’t know what’s going to happen — except it’s going to get ugly,” said Susan Hays, a Dallas attorney who has defended abortion rights in Texas courts.
Peter Brownlie, executive director of a Planned Parenthood branch serving Kansas and Missouri, said most voters even in those conservative states support some abortion rights.
“It’s interesting to speculate what kind of backlash might occur if Roe were overturned,” Brownlie said. “I suspect a lot of people who’ve been on the sidelines would bring pressure on their political representatives not to take draconian steps.”
“You could call it a patchwork, but it’s democracy in action,” said attorney Clarke Forsythe of Americans United for Life. “The two or three or four sides of the issue would duke it out, and at the end of the day the legislature votes. Public opinion would be better reflected in public policy.”
Searching for a middle ground
Forsythe predicts that only a few states would ban most abortions or allow them virtually unrestricted. The rest, he said, would form a middle ground, imposing restrictions that would reduce U.S. abortions from the current level of nearly 1.3 million annually.
Restrictions might include banning abortions after the first trimester, narrowing the grounds on which women can get late-term abortions for health reasons, and tightening parental-involvement laws that many states already use to curtail minors’ abortions.
Some anti-abortion activists aren’t clamoring for reversal of Roe because of the probability that many states — including New York and California — would still allow abortions. Hard-liners instead want a federal Human Life Amendment criminalizing all abortions; such a measure would need two-thirds support in the House and Senate, then ratification by 38 state legislatures.
“That’s not a realistic scenario,” Forsythe said.
Fears for poor women, teenage girls
Although abortion-rights leaders believe most women would retain access to abortions after Roe’s reversal, they worry that new bans and laws would dangerously narrow the options for poor women and teenage girls. “We’d return to women being maimed and killed by resorting to self-abortion and illegal abortion,” Brownlie said.
Chavkin, the Columbia professor, said the so-called back-alley abortions of the pre-Roe era might be replaced by self-performed abortions using the readily available drug misoprostol.
Approved since 1988 to treat ulcers, misoprostol is one of two drugs that make up the so-called abortion pill. Chavkin said it can end a pregnancy when used alone, but with a higher complication rate and lower success rate than when used with the other drug, mifepristone.
Misoprostol’s availability means abortion would remain a viable, though risky, option even in states that imposed post-Roe bans, Chavkin said.
“The Pandora’s box is open,” she said. “The anti-abortion forces can make life harsh, they can harass people and make them feel crummy. But they can’t stop this. On some level they’ve lost already.”