On Friday, the Supreme Court overturned Roe v. Wade with its decision in Dobbs v. Jackson Women’s Health Organization. Now, there is no longer any constitutional right to an abortion.
“We hold that Roe and Casey must be overruled,” Justice Samuel Alito writes in his majority opinion. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.”
The decision closely mirrors a draft leaked by Politico in May. That leak intensified electoral battles and prompted questions about what actions states and Congress can take. Now that the decision is out stakes of those contests and the urgency of those questions will only be heightened. A half-century of jurisprudence has been reversed. And the only immediate recourse for pro-abortion advocates is through local and federal lawmakers.
Lawmakers have been scrambling to respond to the court’s anticipated decision, which will result in fragmented abortion access across the country. Now that it is here, those efforts will take on new urgency. In 18 states, there are trigger laws or preexisting bans which would bar all or nearly all abortions nearly immediately. In other places, abortion access isn’t poised to change.
Here’s what to expect from the states, and from Democrats and Republicans.
What happens to pregnant people now that Roe has been struck down?
In short, abortion rights have now contracted rapidly.
At least 18 states have total or near-total abortion bans on the books. The details of these laws vary; some of them will go into effect right away, while others will take days or weeks to go into effect. Some of these laws contain narrow exceptions to protect individuals who need an abortion to save their life or to avoid a permanent disability, but, for example, not all contain exceptions for non-life-threatening medical conditions. But by the end of the summer, nearly all abortions will be illegal in around 18 states.
Four other states have laws banning abortion after the sixth week of pregnancy, before many people are even aware that they are pregnant.
Criminalizing abortion historically hasn’t stopped people from seeking one. Research from the pro-reproductive rights group the Guttmacher Institute indicates no statistically significant difference in rates of abortion between countries that do and do not broadly allow the procedure. But accessing an abortion safely and legally will become more complicated and risky for people in nearly half the states in the US now that Roe has been overturned.
Republicans celebrate, cautiously brace for political impact, and plot their next moves
Republicans were celebratory after the release of the decision on Friday morning, immediately claiming victory.
The House Republican leadership said in a statement Friday, “Every unborn child is precious, extraordinary, and worthy of protection. We applaud this historic ruling, which will save countless innocent lives.”
The celebrations largely focused on the decision being the realization of a longtime conservative dream. But they made little mention of potential electoral consequences of the ruling, which might not play in Republicans’ favor heading into the midterms. While GOP candidates can now tout their party’s ability to deliver on their long-running campaign promises on abortion, it’s equally plausible the decision will energize Democratic voters. Democrats are certainly hoping so, with House Speaker Nancy Pelosi saying Friday she hopes the ruling with energize voters, in all races, but particularly “to get two more senators so we can change the obstacles to passing laws.”
The general election is more than five months away, however, and it’s not clear Democrats will be able to sustain anger generated by the decision until then. Outside of Dobbs, Democrats are facing many factors that point to a devastating election year for them, including inflation and an unpopular Democratic president, but it’s something GOP strategists are keeping an eye on.
“I definitely think it’s a jolt for the Democrats and that it’s not really a jolt for Republicans. Republicans are already fired up and ready to show up to vote. So I don’t think it helps Republicans at all,” said Jay Williams, a Georgia-based GOP strategist, ahead of the decision.
About half of Americans consider themselves to be pro-abortion rights, and Republicans don’t want to risk alienating them in a general election, Williams said.
“In a general election, you don’t run on [abortion.]” he said. “So I don’t think it will change their strategy right now.”
But Republicans are gearing up for the next front in the anti-abortion movement. In May, the Washington Post reported that Republicans have discussed putting in place a nationwide ban after six weeks of pregnancy. Should they take Congress in the midterm elections, they could attempt to do so. Texas, Oklahoma, and Idaho have already enacted their own versions of “heartbeat” legislation that allows private individuals to sue anyone who performs or aids in an abortion after fetal cardiac activity is first detected, typically around six weeks of pregnancy.
Democrats are running up against limitations in Congress
Because of the Senate filibuster — and disagreement within their own caucus — Democrats are pretty limited in responding legislatively at the federal level.
While Democrats currently control both chambers of Congress, and the House passed the Women’s Health Protection Act last year, it is stalled in the 50-50 Senate.
Due to the legislative filibuster, most bills need 60 votes to pass, meaning Democrats would have to get their entire caucus on board and 10 Republicans to join them. That’s not going to happen.
Another option would be to overturn or make an exception to the filibuster. They’d need all 50 members on board to eliminate the filibuster on any bill, backing they don’t currently have for any issue. It’s an even longer shot with abortion rights, seeing as Democrats aren’t even unified on legislation codifying Roe.
In the past, Sens. Joe Manchin (D-WV) and Bob Casey (D-PA) have been opposed to abortion rights legislation. Casey has notably voted to consider debate on an abortion rights bill, but he has not indicated if he’d support the legislation itself, while Manchin voted against such legislation this past March. (In the spring, a procedural vote on the Women’s Health Protection Act — which would enshrine the right to perform and access an abortion into federal law — failed 46-48 in the Senate, with all Republicans and Manchin voting against proceeding and several lawmakers absent.)
On Friday, Manchin put out a statement saying “I support legislation that would codify the rights Roe v. Wade previously protected. I am hopeful Democrats and Republicans will come together to put forward a piece of legislation that would do just that.” His statement did not mention the filibuster, however.
Given the barrier posed by the filibuster, there’s, theoretically, a third option: Get a couple of pro-abortion rights Republican senators to join with 48 or 49 Democratic senators to change the filibuster to then pass a law codifying Roe. Two Republicans — Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) — are both pro-abortion rights, but they voted against the WHPA because they felt it was too expansive. Neither has signaled that they’d be willing to eliminate the filibuster to pass legislation codifying Roe.
“Unless you do something about the filibuster that I have long supported eliminating, we would not have the votes to … enshrine the protections of Roe v. Wade into law,” Sen. Amy Klobuchar (D-MN) said in a May CBS News interview. “Most likely this will end up at the ballot box.”
Biden, meanwhile, has some narrow avenues to improve abortion access via executive action, according to a report by the 19th. While he couldn’t protect abortion rights wholesale, he could take actions that increase access to medication abortions and potentially enable providers to set up clinics on federal land in states where there are restrictions.
“We have outlined more aggressive strategies,” says University of Pittsburgh law professor Greer Donley, the co-author of a New York Times op-ed about executive actions. “The question is whether the Biden administration is going to, after Roe is overturned, be willing to do them.”
Those, however, would still be limited. Now that the Supreme Court’s chosen to overturn Roe the right to access an abortion will no longer be a right for many.
At least in the short term, it will be up to the states to decide.
Update, June 24, 11 am: This story has been updated based on the Supreme Court’s decision overturning Roe v. Wade. Click here for all Vox’s latest coverage of this decision and its implications for reproductive health in the US.