Jun 24, 2022 - Politics & Policy

Here's what happens now that the Supreme Court has overturned Roe v. Wade

Picture of two girls crying and hugging in front of the Supreme Court

Photo: Anna Moneymaker/Getty Images

Millions of Americans lost access to abortion moments after the Supreme Court overturned Roe v. Wade and other precedents protecting that right.

By the numbers: Overall, 26 states are "certain or likely" to ban abortion now that the Supreme Court has overturned its precedents, according to the Guttmacher Institute.

At least 16 states and Washington, D.C., have enacted laws that automatically keep abortion legal even without Roe.

What we're watching: There are at least nine states with bans in their books from before Roe was decided in 1973, and they were dormant because of the precedent. However, without Roe, these laws could be brought back.

  • There needs to be some sort of action to make these laws take effect, such as an attorney general issuing an opinion or a state filing a court case, Elizabeth Nash, a lead state policy analyst for the Guttmacher Institute, a reproductive rights research and policy organization, told Axios in October.
  • Anti-abortion rights leaders are already preparing their next moves. SBA List president Marjorie Dannenfelser told Axios' Alayna Treene her group will work to ban abortion "in every state and in every legislature, including the Congress.”

Zoom out: The question now is what happens to other constitutional rights that are protected by Supreme Court precedents that are similar to Roe.

  • Prior to today's decision, the right to an abortion was protected by the due process clause of the 14th Amendment.
  • Justice Clarence Thomas wrote in a concurring opinion overturning Roe that the court should reconsider other due process precedents protecting same-sex relationships, marriage equality and access to contraceptives. It is unclear what immediate effect Thomas' words will have.

Driving the news: Justice Samuel Alito wrote in the court's opinion that Roe was "egregiously wrong and deeply damaging," and that states should have the right to regulate abortion — giving way for state lawmakers to ban abortion at any point in the pregnancy, including fertilization.

  • In their dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor said that "[p]erhaps, in the wake of this decision, a state law will criminalize the woman's conduct too, incarcerating or fining her for daring to seek or obtain an abortion."

What they're saying: "Generations of people have relied on this right and they'll now be thrown into a world without it. I can't emphasize enough what a cataclysmic change this will be, how much chaos we will see in the coming days and months," said Julie Rikelman, senior director of U.S. Litigation at the Center for Reproductive Rights, which represented the abortion clinic in the case for which the Supreme Court issued its opinion.

  • "The impact of this ruling truly will be swift and severe," Rikelman added, saying that "we are on the verge of what may be the biggest public health crisis that we have seen in decades."
  • Rikelman said that the center is working with its clients, adding that they plan to file lawsuits in the coming days, weeks or months to "preserve access where we can for as long as possible."

State of play: The Supreme Court upheld a 15-week abortion ban in Mississippi, which had been blocked since 2018 because it was before viability, which is known as the point when a fetus can survive outside the womb, around 24 to 28 weeks after a patient’s last menstrual period.

  • Alito said that the viability line, which was established by Roe and other precedents, "makes no sense," a point which Chief Justice John Roberts agreed with.

While the right to having an abortion was overturned today, clinics that offered the procedure in some states had closed ahead of the Supreme Court ruling, meaning that residents in particularly red states had lost access to abortion even as it remained federally protected.

Zoom in: In Alabama, the state's attorney general has already declared that all laws that prohibit abortion "are in full effect," and ordered abortion clinics to "cease and desist operations" immediately.

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