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Reversing Roe v. Wade and Its Implications for Women and the States

Anthony Kennedy’s retirement and the ongoing confirmation hearings for Supreme Court Justice nominee Brett Kavanaugh have reignited the national conversation on reversing Roe v. Wade and its implications for women and the states. There are many public misconceptions surrounding this issue, particularly about what America would look like if Roe were overturned.

Would Abortion Be Banned Nationwide?

The prevalent assumption is that if Roe were overturned, abortion would be illegal in America and the country would be taken back to 1973.  In fact, the opposite is true.  If Roe were reversed, abortion would remain legal in 40 states.  In 22 of those 40 states, abortion throughout all stages of pregnancy would automatically remain legal until new state laws are enacted.  In the other 18 states and the District of Columbia, abortion would be legal only prior to viability.  The remaining 10 states would prohibit abortion, even before 20 weeks/viability.

A reversal of Roe would not decide the ultimate legality of abortion.  It would simply mean that this issue is up for the people to decide.  It would return the issue to the state legislatures and the democratic process, allowing Americans to determine abortion policy for themselves through their elected officials, rather than having it decided for them by the justices of the Supreme Court.  Moreover, restoring the power of the states and removing the narrow legal framework created by Roe and Planned Parenthood v. Casey would allow abortion laws to be more easily changed and updated according to modern medical research, technological advancements and current public opinion.  Courts can only strike down laws; unlike the legislature, courts cannot adjust, correct, and develop policy as new medical facts and social circumstances emerge.

Isn’t Roe “Well-Settled Law”?

Another prevalent, but false, assumption is that Roe is supported by strong public consensus and is legally considered “well-settled law.”  The exact opposite is true.  The legal rationale and medical facts underlying Roe and Casey remain an area of controversy – legally, medically and culturally.  At the same time, recent polling data on abortion demonstrates that the majority of Americans do not agree on Roe v. Wade, and that there is actually a public trend favoring abortion restrictions.

Polls indicate that when Americans are informed that Roe effectively legalized abortion throughout all nine months of pregnancy, their support for Roe plummets.  A January 2018 Marist poll [1] revealed that a strong 76% of Americans oppose abortion in the second and third trimester, and want to limit abortion only to the first trimester.  Only 12% believe that abortion should be available at any time during pregnancy.  Similarly, a June 2018 Gallup poll [2] showed that only 28% of Americans support abortion during the second trimester, and a mere 13% support it during the third trimester.  (Notably, polls by NBC News and Quinnipiac University showing a majority of respondents disfavoring a reversal of Roe did not explain to participants that Roe allows abortion throughout all nine months of pregnancy.)

Medicine and technology have changed significantly since 1973 when Roe was decided.  Roe was decided before the availability of ultrasound technology.  Advancement in fetal-maternal science since Roe overwhelmingly supports the humanity of the unborn and the government’s interest in protecting fetal life.  These developments in science and medicine have influenced recent policy initiatives and current public opinion on abortion.

For example, we now have substantial medical evidence that an unborn child is capable of experiencing pain at or before 20 weeks of gestation.  This medical evidence did not exist when Roe was decided.  In light of this new medical evidence, the federal “Pain Capable Unborn Child Protection Act [3]” banning abortion after 20 weeks was passed in the House of Representatives last year, but was narrowly defeated by a filibuster in the Senate by a slim 51-46 vote this January. Abortion proponents argued that the ban conflicts with Roe and Casey, and had the ban been passed, would likely have challenged it in court.

The growing body of new research and data on the health and psychological risks of abortion to women presents another reason why Roe is outdated and abortion regulation should be returned to state legislatures.  As we have seen in the recent Supreme Court case, Whole Woman’s Health v. Hellerstedt [4] (striking a Texas law requiring minimal safety conditions for abortion clinics), Roe and Casey have made it nearly impossible to enact meaningful, basic health and safety regulations for women [5] undergoing abortion.  This approach to women’s health and safety is out of sync with modern science.

By returning abortion policymaking to the people, reversing Roe v. Wade would be a welcome opportunity to let women’s authentic voices – and not just those on the Supreme Court or special interest groups – to be heard on abortion.  Reversing Roe would finally allow us to move forward and empower our legislatures to create abortion laws that more accurately reflect scientific advances on women’s health and fetal development, and further the life-affirming values of the American people.