“American women are about to lose their right to abortion!”
“Hooray! Abortion is almost over in the US!”
There has been a lot of emotion over the recent Supreme Court leaked draft opinion for the Dobbs v. Jackson case. There has also been a lot of misinformation shared by both sides of the abortion debate.
So what does the Dobbs opinion really mean for abortion rights in the US?
The Recent News
Since the unprecedented leak of the Supreme Court’s draft opinion for Dobbs v. Jackson Women’s Health Organization, there have been outcries of worry and anger from abortion supporters and rounds of celebratory applause from abortion opponents.
But if the opinion becomes law, what does that really mean for the future of abortion in the US? (Hint: it does not mean all abortion becomes banned.)
Understanding the outcome of the Dobbs opinion requires an understanding of previous Supreme Court decisions regarding abortion.
The History of Roe
Contrary to popular belief, abortion was legal in many states prior to 1973, when Roe v. Wade was decided. Thirteen states, to be exact, permitted abortion in most circumstances, while all other states allowed it to save the life of the mother. (1)
Because abortion is not mentioned in the Constitution, prior to Roe, it was a right held by the states; this means that individual states could decide whether to allow abortion and which restrictions or regulations to enact.
The decision in Roe made abortion a fundamental (and, therefore, Constitutional) right by holding that abortion was included under the right to privacy, which was previously established in a case involving the right to access birth control. (2)
Roe established a trimester framework, where the woman’s interest in bodily autonomy outweighed the state’s interests in maternal health and protecting the potential human life of the unborn child during the first trimester. But under Roe, states could enact regulations to protect maternal health into the second trimester and prohibit abortion (with exceptions for the health of the mother) to protect fetal life in the third trimester. (3)
Its Sister Case, Casey
In 1992, the Supreme Court upheld abortion as a fundamental right in Planned Parenthood v. Casey, but it rejected the trimester framework and replaced it with the condition of viability. (Viability is the point at which the baby can survive outside the womb; at the time, it was considered to be at about 24 weeks gestation, but today, some babies have been viable as early as 20 weeks).
Under the viability rule, states can regulate but not prohibit pre-viability abortions, and they can ban post-viability abortions, as long as exceptions are made for the health of the mother. (4)
The Dobbs Case and the Leaked Draft Opinion
The Dobbs case involves a law in Mississippi that prohibits abortion after 15 weeks—which would prohibit pre-viability abortions. Therefore, the central question in Dobbs is this: Can states prohibit abortion before the point of viability?
The leaked draft opinion (which is not yet law because it is not a published opinion), answers the central Dobbs question affirmatively, upholding Mississippi’s law.
If this opinion becomes law, the Court would overturn both Roe and Casey and hold that abortion is not a right protected by the US Constitution and is, therefore, a right held by the states. (5)
What Does This Mean for the Future of Abortion in the US?
This means that each state would now get to decide its own abortion law. Despite the outcries and applause, the Dobbs opinion, while creating the potential for major progress within the pro-life movement, does not cause abortion to disappear in the US.
States like California and New York would still be able to allow unrestricted access to abortion.
The difference is that states with a majority of people who do not want abortion in their state would now be free to prohibit it through state legislation.
The only immediate prohibitions that would go into effect are in states that have trigger laws, which call for a statewide abortion ban should such bans be made constitutional. These states include Arkansas, Idaho, Kentucky, Louisiana, Missouri, Mississippi, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. (6)
The Dobbs opinion (if it becomes law) certainly provides momentum to the pro-life movement by allowing states to prohibit or more restrictively limit abortion.
However, abortion supporters need not worry that access to abortion is done for in the US because the opinion gives the power to the people to enact whatever abortion legislation they see fit. And, for the same reason, while statewide abortion bans may become constitutional, abortion opponents have a lot of work to do if they would one day like to see an abortion-free America.
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Debating abortion in 1972, before Roe v. Wade, Cbs News (2022). https://www.cbsnews.com/news/abortion-debate-1972-pre-roe-v-wade-60-minutes-2022-05-03/.
See Griswold v. Connecticut, 381 U.S. 479(1965).
Roe v. Wade, 410 U.S. 113, 152-53, 163-64, (1973).
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846 (1992).
Dobbs v. Jackson Women’s Health Org., leaked draft opinion p. 5-6 (2022).
Jillian Smith, 13 states have 'trigger laws' that would ban abortion if Roe v. Wade is overturned, WKRC (2022). https://local12.com/news/nation-world/13-states-have-trigger-laws-that-would-ban-abortion-if-roe-v-wade-is-overturned-where-would-abortion-be-banned-if-roe-is-reversed-what-states-will-ban-abortion-which-states-protect-abortions-supreme-court-scotus-leak-draft-opinion.