What if...Roe v. Wade were overturned?

Background Information:

The Bill of Rights and other provisions of the U.S. Constitutions are the ultimate protections of our civil rights and liberties. But how do these rights work out in practice? How do we determine what our rights are in any given situation? One way is through judicial review, the power of the United States Supreme Court or other courts to declare laws and other acts of government unconstitutional. Supreme Court cases are often hotly contested, and the decision in the 1973 case Roe v. Wade is one of the most contentious ever handed down. In the Roe v. Wade case, the Court declared that a woman's constitutionally protected right to privacy includes the right to have an abortion. The Court concluded that the states cannot restrict a woman's right to an abortion during the first three months of pregnancy. More than thirty years later, however, the debate over the legality of abortion still rages in the United States.

What if Roe v. Wade were overturned?:

If the Supreme Court overturned Roe v. Wade, the authority to regulate abortion would fall again to the states. Before the Roe v. Wade case each state decided whether abortion would be legal within its borders. State legislatures made the laws that covered abortion. Some critics of Roe v. Wade's constitutional merits have argued that allowing the Supreme Court to decide the legality of abortion nationwide is undemocratic because the justices are not elected officials. In contrast, if state legislatures regained the power to create abortion policy, the resulting laws would reflect the majority opinion of each state's voters. Legislators would have to respect popular sentiment on the issue or risk losing their next reelection bids.

The possibilities of state bans on abortion:

Simply overturning Roe v. Wade would not make abortion in the United States illegal overnight. In many states, abortion rights are very popular, and the legislatures in those states would not consider measures to ban abortion or to further restrict access to abortion. Some states have laws that would protect abortion rights even if Roe v. Wade were overturned. Access to abortions would likely continue in the West Coast states an in much of the Northeast. In much of the South and the Midwest, however, abortion could be seriously restricted or even banned. Some states have "trigger laws" that would immediately outlaw abortion if Roe v. Wade were overturned.

Women living in the conservative states such as the Dakotas, Kentucky, and Mississippi already face serious difficulties in obtaining an abortion. In each of these states, 98 percent of the counties do not have an abortion clinic. Many women desiring the procedure already have to travel long distances. If abortion were banned, these women could still cross state lines to obtain an abortion. If twenty-one of the most conservative states banned abortion, only 170 providers would be affected- less than 10 percent of the national total.

State challenges to Roe v. Wade:

Undoubtedly feeling optimistic because of President George W. Bush's conservative Supreme Court appointments (John Roberts and Samuel Alito), South Dakota's legislature passed a law in February 2006 banning abortion. The new law was unconstitutional given the Roe v. Wade decision, but its supporters clearly hoped that the newly constituted Court would overturn Roe v. Wade "Freedom of choice" groups were able to place the ban on the state ballot in 2006, however, and the voters repealed the act.

In 2008, "rights-to-life" activists in a number of states placed antiabortion measures on the ballot. In Colorado, for example, citizens voted on whether the state constitution should declare a fertilized egg a "person" who enjoys "inalienable rights, equality of justice, and due process of law." Such a measure would not ban abortion directly, but it would undercut the legal reasoning used in deciding Roe v. Wade. The measure was voted down by three-to-one margin. In South Dakota, voters faced a new antiabortion measure that was less restrictive than the 2006 law. It was also defeated.

For Critical Analysis:

1. Why do you think abortion remains a contentious topic more than thirty years after the Roe v. Wade decision? Should that decision be revisited? Why or why not?

2. How significant a role should the courts play in the deciding constitutional questions about abortion? Do you feel that individual states should have a say in the legality of abortion within their own borders? Why or why not?

2 Answers

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  • Best Answer

    I believe that the analysis is fairly correct with some cautions. In the first place, there have been other Supreme Court rulings that deal with abortion, so how those are addressed should be considered. Still, the main gist of reversing the 1973 decision can be analysed.

    I believe that there are a couple of analogous situations that can be explored. One is Prohibition, where its repeal returned power to the states, and indeed many states maintained prohibition within their borders for some time. Even today, there are many dry counties and laws regarding who can sell alcohol and when are still contentious.

    A second is legalised gambling. Originally it started with Nevada, but many states, even without First Nations reservations, have permitted casinos to open in limited places with few signs of them becoming prohibited in the future.

    I suppose that the point is that as long as abortion is legal somewhere, and it will be, it's effectively legal everywhere, but that won't stop some places from trying. I tend to use New York and Pennsylvania as examples as they have a long border but tend to be opposite on the abortion issue. (Recall that Pennsylvania has elected pro-life Democrats to office while New York legalised abortion before 1973.) If Roe v. Wade were repealed and the states returned to form, Pennsylvania residents wanting an abortion will simply travel to New York, which is easier than Irish citizens travelling to the UK for the same reason. However, that won't stop opponents in either state from trying to change the law.

    Hope that helps.

    Source(s): My opinions and views.
  • 1 decade ago

    Why do I think abortion remains a contentious topic? Because death is contentious. Life is precious and should not be taken lightly. Somebody has to speak for those who can not speak for themselves.

    The constitution explicity states that: "The powers not granted herein to the Federal Govt belong to the States and the People, respectively."

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