- A leaked draft of the U.S. Supreme Court’s deliberations in a related case suggests that the Court plans to overturn the 1973 Roe v. Wade ruling establishing a Constitutional right to abortion.
- The Court’s Chief Justice says the draft does not reflect the justices’ final opinions.
- Whether one believes abortion should be available to pregnant people in the U.S. or not, the draft has caused a whirlwind of controversy and questions.
On May 2, 2022, news outlet Politico obtained a draft of the United States Supreme Court’s upcoming decision in Dobbs v. Jackson Women’s Health Organization. This case provides an opening for conservative justices to reassess the landmark 1973 Roe v. Wade decision that protected the right to abortion before fetus viability in the U.S.
The February 10, 2022 draft reveals the Supreme Court’s intention at that date to overturn Roe altogether.
The Supreme Court released a statement affirming that the draft was genuine, but said that, as a draft, “it does not represent a decision by the Court or the final position of any member on the issues in the case.”
Chief Justice John G. Roberts, Jr. said that the Court’s work “will not be affected in any way,” and an investigation into the source of the leak is underway.
Nonetheless, the publication of the draft served notice that the Court’s upcoming final decision may well eliminate a long-standing constitutional right many have taken for granted. The draft leaves uncertainty about what lies ahead, particularly for people’s reproductive rights and racial and economic equity.
If the Supreme Court does strike down Roe, the legality of abortion services will be determined on a state-by-state basis.
No one can see the future. However, it is already the case that abortion is not universally available to pregnant people in need of one for various reasons, and much is known about the effect a lack of access can have. Such existing research provides a glimpse into what is yet to come if the Court strikes down Roe v. Wade decision.
Here is what we know and what to expect.
States where abortion will remain legal
In 16 states and the District of Columbia, access to abortion has already been made a fundamental right by state legislatures and courts, regardless of the Supreme Court’s upcoming decision.
Abortion will thus remain available to any pregnant person who lives in or can afford to travel to such a state for the procedure.
The primary burden of the Court’s action will be borne by pregnant people who cannot afford such out-of-state treatment.
The states where abortion will remain legal are California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. Other states may choose to join this list in the future.
Experts predict that states with bans will attempt to make it illegal to travel to another state for an abortion, though none currently prohibit it.
Where abortion will be banned or limited
If the Court overturns Roe v. Wade, abortion will most likely be tightly restricted or banned quickly in 22 states. Without federal protections in place, another four states — Florida, Indiana, Montana, and Nebraska — are expected to move forward with banning abortion.
In 19 states, laws banning the procedure already exist. Some have been written explicitly in the hopes that Roe will be overturned. If this happens, such laws will quickly go into effect.
The states are Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Carolina, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming.
Several of those 19 states have pre-Roe laws still in effect but are unenforceable under Roe, and some states have multiple types of abortion restrictions or bans.
There are currently three states — Iowa, Ohio, and South Carolina — that have unconstitutional post-Roe bans or restrictions that could take effect if the Court overturns Roe.
The removal of Roe protections may also prompt a rush to enact new anti-abortion regulations once Roe is out of the way. In the last year before the draft, new restrictive laws were introduced in 30 state legislatures across the nation.
Overall, it is likely that clinics offering abortion in states that restrict it will find it difficult to remain open.
When abortion is not available
In the pre-Roe 1950s and 1960s, 200,000 to 1.2 million abortions were performed in unregulated, illegal settings due to a lack of legal options. In 1965, for example, there were about 200 deaths attributed to illegal abortion, though that figure is likely an underreporting given the illegality involved. Nonetheless, this constituted 17% of all deaths attributed to childbirth and pregnancy that year.
According to research from the Guttmacher Institute:
“A clear racial disparity is evident in the data of mortality because of illegal abortion: In New York City in the early 1960s, one in four childbirth-related deaths among white women was due to abortion; in comparison, abortion accounted for one in two childbirth-related deaths among nonwhite and Puerto Rican women.”
Women may turn to self-abortion techniques when abortion services are difficult or impossible to obtain. According to ANSIRH, about 7% of women with unwanted pregnancies attempt self-abortion, most typically via herbal, medicinal, physical methods, or emergency contraception. Complications are relatively uncommon, though the procedures are successful just 28% of the time.
Pregnant people without access
Jessica Mason Pieklo, Senior Vice President and Executive Editor of Rewire News Group, told Medical News Today:
“Banning abortion will … increase maternal mortality rates in this country. A recent study concluded that banning abortion nationwide would lead to a 21% increase in the number of pregnancy-related deaths overall and a 33% increase among Black women specifically. People who are denied an abortion have almost four times greater odds of being below the federal poverty level, and denying them care makes it more likely they will struggle to meet basic living expenses like rent and food.”
ANSIRH has published a document describing the consequences typically experienced by pregnant people, particularly low-income women, who are unable to get abortions, as would likely be the case if the Supreme Court overturns Roe. The damage inflicted by a lack of access is presented in categories:
- “Denying a woman an abortion creates economic hardship and insecurity which lasts for years.”
- “Women turned away from getting an abortion are more likely to stay in contact with a violent partner. They are also more likely to raise the resulting child alone.”
- “The financial wellbeing and development of children is negatively impacted when their mothers are denied abortion.”
- “Giving birth is connected to more serious health problems than having an abortion.”
Broader consequences
In September 2021, 50 major companies published an open letter describing the negative effect of abortion restrictions in America, specifically about recent developments in Texas.
The companies stated that by limiting abortion rights, “the future of gender equality hangs in the balance, putting our families, communities, businesses and the economy at risk.”
The open letter stated, in part:
“Simply put, policies that restrict reproductive healthcare go against our values and are bad for business. It impairs our ability to build diverse and inclusive workforce pipelines, recruit top talent across states, and protect the well-being of all the people who keep our businesses thriving day in and out.”
In the same month, 150 economists and researchers filed an amicus brief in Dobbs v. Jackson Women’s Health Organization, stating: “Studies show that abortion legalization has had a significant impact on women’s wages and educational attainment, with impacts most strongly felt by Black women.”
Making the decision
It may yet be that the justices will craft some less-absolute compromise, and it remains possible at this writing that Roe v. Wade will not be overturned, even if the draft release suggests it will. Congressional action to formalize a right to abortion is also possible, given widespread public support for such a right.
The Supreme Court’s final ruling in Dobbs v. Jackson Women’s Health Organization is expected sometime during the summer of 2022.
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