Overturning Roe v. Wade Could Have Consequences Beyond Abortion Restrictions

The Supreme Court plans to strike down Roe v. Wade and Planned Parenthood v. Casey this summer, according to a leaked draft opinion obtained by Politico. If the draft decision is confirmed, more than a dozen states are likely to ban abortion care, imposing the largest restriction to reproductive rights in nearly 50 years.

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Justice Samuel Alito wrote in a draft majority opinion. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

A majority of Americans opposes overturning Roe v. Wade, according to a January CNN poll. Almost 60% respondents said that if the court did overturn Roe v. Wade, they would like to see more permissive abortion laws in their state.

“Justice Alito has crafted an opinion suffused with contempt and rage that demeans both jurists and ordinary people who believe that the Constitution protects the right of women and girls to control their own reproductive lives,” Tobias Barrington Wolff, JD, a Jefferson B. Fordham professor of law at the University of Pennsylvania Law School, said in an emailed statement.

“We should not have this draft in front of us,” he said. “But we do, and if the final opinion looks substantially like this draft, it is a grave moment in our constitutional history.”

Abortions are considered a common and critical part of health care. About a quarter of women in the United States will have an abortion at some point in their lives, according to the Guttmacher Institute.

While the draft has yet to be finalized, overturning Roe and Casey decisions will disproportionately affect people who face economic barriers. In 2014, three quarters of abortion patients were low income and almost half of them were living below the poverty level.

Abortion restriction may further harm people of color. According to an analysis published in the journal Obstetrics & Gynecology, Black people in Texas were more than twice as likely to die from pregnancy-related complications than White people. Banning abortion forces people who are already at a higher risk of maternal mortality to go through with an unsafe pregnancy, or alternatively, an unsafe abortion.

What Does Roe v. Wade Protect?

In 1973, the Roe v. Wade ruling established a constitutional right to abortion, and it did so by more broadly protecting the right to privacy in health care.

Protecting the right to abortion didn’t mean granting new access to abortions. Abortions began long before the passing of Roe v. Wade, although they were largely illegal and unsafe. Roe v. Wade didn’t merely provide a right to abortion, it provided access to safe abortion.

“People who think that abortion didn’t occur before Roe are wrong,” Christa Ramey, JD, a civil rights attorney at Ramey Law PC, told Verywell. “Women just died before Roe.”

Because of Roe v. Wade, the government is not permitted to interfere with private conversations between patients and their healthcare provider, and therefore cannot punish people for seeking or going through with an abortion.

Roe v. Wade also strove to protect the rights of a viable child. A fetus was deemed viable when it could survive outside a pregnant person’s womb, the justices decided. Before that point, the patient’s right to privacy—and the right to terminate their pregnancy—was of first importance.

To more specifically define when this transition to viability occurred, the court evaluated pregnancy based on its three trimesters. During the first trimester, a pregnant person’s right to terminate the pregnancy was fully protected. During the second, pregnancy termination was partially protected; it could not be outlawed, but it could be regulated by the state. During the third, the state could choose to regulate or outlaw the decision.

What Did Planned Parenthood v. Casey Change?

Planned Parenthood v. Casey was a follow-up case to Roe v. Wade in 1992. The Casey ruling amended parts of the Roe decision to remove the trimester distinction and placed more restrictions on abortion care. If the Supreme Court strikes down Roe, it will in turn strike down Casey.

“Casey allowed for restrictions to take place,” Ramey said. “But nevertheless, what Casey did was affirm that Roe was the law of the land.”

Some of Casey’s changes involved creating leeway for states to intervene on abortion care. To loosely guide which restrictions were legal or prohibited, the new ruling set up an “undue burden standard.” Under this standard, states could place some restrictions around abortion access, but not so far as imposing “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

For example, states may not require patients to tell their spouse that they are seeking an abortion as that could place an “undue burden” to their ability to access care. However, some states may require pregnant people to look at ultrasound images of their fetus before an abortion is performed.

Does This Draft Opinion Affect Abortion Care Now?

Currently, the Supreme Court draft does not change people’s access to abortion care. If a final ruling is issued, it will affect access on a state-by-state basis.

Some states, like Texas and Oklahoma, have already placed substantial restrictions on abortion care. At least 13 states have passed “trigger laws" that would ban all or nearly all abortions once Roe is overturned. Democratic governors in other states, such as New Mexico and North Carolina, have promised to protect abortion access regardless of the final court decision. 

The leak revealed that five of nine justices—a court majority—support the decision in the draft. However, if one judge changes their mind, the majority will switch and Roe will be upheld.

“That’s all that’s needed. That majority opinion could become a dissenting opinion if one vote changes,” Ramey said. However, she said this scenario is unlikely because the court “has become so politicized.”

Could the Court Strike Down Other Privacy Protections Too?

A Roe-Casey strike down could have spillover effects that extend beyond abortion access. It could be used as a precedent to overturn other civil rights legislation that deal with privacy.

“That’s the slippery slope here: The right to privacy that exists between a patient and a doctor is now in jeopardy,” Ramey said. “There are other constitutional rights that have flowed from Roe and Casey, including the right to marry anyone you choose.”

Kim Roosevelt, JD, a professor of constitutional law at the University of Pennsylvania Law School, expressed concerns for how the potential decision could impact gay rights legislation.

“In terms of consequences, it adopts a methodology that suggests recent gay rights decisions, from same-sex marriage to the invalidation of sodomy bans, are not secure," Roosevelt said in an emailed statement. "If there are five justices who endorse this draft, it’s unlikely that they will stop with Roe.”