What Actually Happens If Roe v. Wade Is Overturned?

Of all the forms of inflation Americans have suffered through in recent months, perhaps the worst kind has been threat inflation — the endless stream of doomsday prophecies and apocalyptic warnings that a coalition of theocrats, rubes, and “white supremacists” are secretly turning America into a copy of The Handmaid’s Tale. This was always off-base in a nation where children may be indoctrinated in Critical Race Theory and attend “drag queen story hour” in the same day. But nothing has thrown more fuel on this overheated rhetoric than the possibility that the Supreme Court might overturn Roe v. Wade. Extreme claims of an impending theocracy ignore what would actually happen if the justices decide to revisit this overreaching judicial diktat and allow the American people to have a greater voice in abortion policy for the first time since 1973.

The pitched rhetoric began even before the Supreme Court agreed to hear cases involving two state laws that offer robust protections for the unborn: a Mississippi law limiting abortion to the first 15 weeks of pregnancy and a Texas law prohibiting abortions on children who have a detectable fetal heartbeat, which occurs around six weeks. MSNBC’s Tiffany Cross said the High Court was seeking to transform the United States into “Gilead 2.0,” and some analysts, including former Planned Parenthood president Cecile Richards, erroneously claimed that “Roe was just overturned” following the adoption of the Texas Heartbeat Law. The hysteria reached a fever pitch during oral arguments for the Mississippi case, Dobbs v. Jackson Women’s Health Organization, which suggested a majority of justices seem open to overturning Roe.

But what would happen if they do overturn Roe v. Wade, the 1973 decision that first invented the novel legal doctrine that the U.S. Constitution contains an unwritten “right” to abortion?

For one thing, the Court would go a long way toward reestablishing its own credibility. Pro-life advocates and even many abortion activists agree on one thing: Roe v. Wade was one of the most egregious acts of judicial activism in history. Ruth Bader Ginsburg once called Roe “heavy-handed judicial intervention.”

Edward Lazarus, a former clerk to Justice Harry Blackmun, who authored Roe, said “Roe borders on the indefensible,” because “it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent.” Revising such a baseless decision can only bolster the court’s reputation.

Overturning Roe almost certainly won’t end all abortions

While the most extreme voices warn that overturning Roe v. Wade would end all abortions nationally, that is not the most likely outcome. It’s true that the court could decide to recognize that all Americans enjoy an inalienable constitutional right to life, which science teaches begins at conception. The Fifth Amendment and Fourteenth Amendment both make it illegal for the government to deprive “any person” of “life, liberty, or property, without due process of law” — a fact Blackmun admitted in the Roe decision. (If the unborn child is recognized as a “person,” the newly minted right to abortion “collapses,” he wrote.) That possibility, though desirable, seems remote.

It is more likely that any court overturning Roe will rule that the Constitution is, in the words of Justice Brett Kavanaugh, “scrupulously neutral on the question of abortion — neither pro-choice nor pro-life.” Should justices arrive at this weaker conclusion, abortion will not grind to a halt nationally. Instead, the American people will finally be given the opportunity to choose abortion policies that reflect their values in a meaningful way for the first time in decades.

America already had a competing checkerboard of abortion laws before Roe. Colorado became the first state to legalize abortion in 1967, six years before Roe, under the leadership of future governor, then legislator, Richard Lamm (D). (Lamm would later show the consistency of his anti-life thought by saying that senior citizens “have a duty to die and get out of the way.”) Other states followed. Even then-Governor Ronald Reagan signed the California Therapeutic Abortion Law, which he thought would allow abortion only in extreme cases; the move became one of his lifelong regrets.

As Americans were sorting out their views, Roe v. Wade dictated from the bench that the newfound right to abortion extends to the point of viability. States may only pass laws prohibiting abortions after the child can live outside his or her mother’s womb, currently legally defined as 24 weeks — nearly the third trimester. Reversing Roe would return abortion law to the states.

How America would change after Roe

State laws would change. Many states have already passed laws that run the gamut from virtually banning abortion to fully funding abortion through all nine months of pregnancy in the event of a Roe reversal.

A dozen states have passed pro-life “trigger laws,” which would begin to protect preborn children

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