Sep 29, 2020 - Politics & Policy

Life after Roe v. Wade

The future seems clear to both parties: The Supreme Court will overturn Roe v. Wade in the next few years, either gradually or in one fell swoop, and the abortion wars will move to a state-by-state battle over freedom and restrictions. 

What's new: Two of the leading activists on opposite sides of the abortion debate outlined for “Axios on HBO” the next frontiers in a post-Roe v. Wade world as the balance on the Supreme Court prepares to shift.

  • Marjorie Dannenfelser, the head of the anti-abortion Susan B. Anthony List, told Axios' Jim VandeHei her group supports America's strictest abortion law in spirit — Alabama's law — though its initial focus will be on limiting abortion at 20 weeks.
  • Dannenfelser predicted that within a few years, a case on abortion will make its way the highest court and begin to undo Roe v. Wade.
  • Alexis McGill Johnson, president of the Planned Parenthood Action Fund, told Axios' Margaret Talev that the court "could certainly gut Roe, related to access to abortion," with 17 federal cases "a step away from the Supreme Court."

Between the lines: A Joe Biden presidency could be expected to protect abortion rights through executive action if a conservative court overturns the decades-old ruling, Johnson said. 

  • Activists would expect a pro-choice White House to blunt the implementation of restrictive state laws through Justice Department review as Sen. Kamala Harris proposed, using the Voting Rights Act as a model, Johnson said.

The state of play: States with conservative legislatures have passed numerous laws to restrict abortion access in recent years, chipping away within the bounds of Roe.

  • In Alabama, where a federal court has put the recently passed law on hold, doctors would face up to 99 years for performing abortions. 
  • In July, two federal judges blocked abortion laws in Georgia and Tennessee that would have made abortions illegal once a heartbeat is detected — at about six weeks, when most women don't even know they are pregnant.
  • In June, the Supreme Court struck down restrictions that required abortion providers in Louisiana to maintain admitting privileges at a nearby hospital in Louisiana — leaving big decisions about the future of abortion access for another day.

Pro-choice states have also laid groundwork to protect the law:

  • Some states — like California, Oregon, Washington and New York — have expanded abortion access such as bypassing parental consent, public funding or statutory protections.
  • Several recognize abortion in their state constitutions, allowing personal reproductive decisions and abortion rights, such as Montana, Florida, Minnesota and Iowa.

The bottom line: Abortion would remain legal in 21 states and would likely be prohibited in 24 states and three territories if Roe v. Wade was overturned, according to the Center for Reproductive Right's "What if Roe Fell?" project.

  • Nearly 2/3 of Americans support keeping Roe v. Wade in place while 29% favor overturning it, according to a CBS News poll published in June.
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