The Moment the Right Needed: The Likely End of Roe

Since the 1973 Supreme Court decision Roe v. Wade, a unified right-wing coalition has sought to overturn federal abortion protections. Various attempts to chip away at the Roe decision permitted states to limit abortion access in specific cases, but Roe has persisted for nearly 50 years. Now, the 6-3 conservative court will hear Dobbs v. Jackson Women’s Health Organization at the beginning of the summer – the best chance to date for the religious right to overturn the ruling in Roe.

Justice Blackmun’s ruling in Roe places the right to an abortion under the right to privacy in the Due Process Clause of the 14th Amendment – a reasoning that conservatives, as well as many on the left, have attacked as too expansive. Specific individuals, most notably Justice Ruth Bader Ginsburg, believe that the right to an abortion should be placed within the Equal Protection Clause of the 14th Amendment. Others argue that it exists under the 9th Amendment,  which states that the Constitution bestows other rights to American citizens that are not explicitly stated. While most left-leaning scholars agree that the right to an abortion exists, they are conflicted about the premise under which it exists.

This divided rationale for the right to an abortion has allowed the religious right to chip away at the Roe decision. While conservative activists unite behind the imagery of destroying a fetus, offer slogans like “abortion is murder,” and all agree that the right to an abortion does not exist in the Constitution, left-leaning scholars are significantly less unified on the issue.

Over the past few years, the majority-conservative Supreme Court has been extremely close to overturning Roe, yet they have consistently fallen short. The court’s decision on the 2016 case Whole Women’s Health v. Hellerstead struck down a Texas bill restricting abortion access, as Justice Anthony Kennedy sided with the liberal bloc. The 2020 abortion case June Medical Services v. Russo again failed to truly damage Roe, as Chief Justice Roberts sided with the liberal justices. However, with the now 6-3 conservative majority after the inauguration of Justice Amy Coney Barrett, it seems improbable that Roe will survive.

The abortion case in June that the Supreme Court will hear is Dobbs v. Jackson Women’s Health Organization. The court will have to decide if a Mississippi law banning nearly all abortions after 15 weeks is unconstitutional, or if it will be able to stand.

Justices Thomas and Alito have consistently voted to allow states to restrict abortion access. In various writings as a Notre Dame law professor, Justice Coney Barrett has been hostile to the federal protection of abortion rights. While on the DC Circuit, Justice Kavanaugh’s ruling on the abortion rights case Garza v. Hargan demonstrates his distaste for federal abortion protections. Thus, the court needs only either Chief Justice John Roberts or Justice Neil Gorsuch to rule in favor of Mississippi’s abortion ban.

The precedent created by ruling in favor of Mississippi’s abortion ban would likely signal an end to the protections of Roe. Of course, the court could choose not to issue such a wide-sweeping ruling: they will likely face significant backlash if they decide to overturn federal abortion protections. With the court’s approval rating based around 44%, a rising but meager and volatile number, it remains in question whether the court would undertake what will surely be the highly politicized decision of overturning Roe.

If the Supreme Court reverses the ruling in Roe v. Wade, and conservative states can enact draconian bans on abortions, individuals will not simply stop getting abortions. These bans will only prompt less safe alternatives – a conclusion backed by numerous academic studies. Only those with geographic access to abortion clinics or those wealthy enough to afford travel to states with abortion clinics will have access to safe abortions.

It seems difficult to conceptualize that the nearly 50 year precedent of Roe could be overturned this summer. However, it appeared difficult to conceptualize that domestic terrorists would attack the nation’s capital or that one political party would spread a misinformed lie that the election was rigged. We live in an age without precedent, an age where the Roe ruling can – and most likely will – be overturned.