What's Next for Roe v. Wade in the Courts?

On Jan. 22, 1973, by a vote of 7 to 2, the Supreme Court legalized abortion in the U.S. under Roe v. Wade. The court's judgment was based on the decision that a woman's right to terminate a pregnancy fell under the freedom of personal choice in family matters protected by the 14th Amendment of the U.S. Constitution.

The case created the "trimester" system, which says states cannot impose any restrictions on women choosing to terminate their pregnancies during the first trimester, though it does allow some government limits in the second trimester. States can restrict or ban abortions in the last trimester once the fetus becomes able to live outside the womb.

However, Roe v. Wade also established that, in the final trimester, a woman could obtain an abortion if doctors certify that it is necessary to save the life or health of the woman.

In 1992, the Supreme Court made another landmark decision in Planned Parenthood v. Casey. In that case, the court upheld a woman's constitutional right to have an abortion established by Roe, but also applied the undue burden standard for abortion restrictions establishing that no laws should be too burdensome or restrictive of one's fundamental rights.

There have been numerous challenges to Roe and Casey through the years that the Supreme Court has struck down, including a six-week ban in North Dakota and a 12-week ban in Arkansas. The court also struck down a 2016 Texas law that impeded clinics' abilities to perform abortions.

Earlier in 2021, however, Texas lawmakers found a way to get around the Supreme Court — at least for now.

At midnight Sept. 1, 2021, the nation's strictest abortion law went into effect in the state. Known as the "fetal heartbeat" bill or SB8, the law bans abortions after six weeks of pregnancy (or six weeks after a person's last menstrual cycle) — before most women know they are pregnant and far earlier than legally provided by Roe v. Wade. What makes Texas' law different from others is that it is enforceable only through private civil action.

Essentially that means the law empowers citizen(s) to sue abortion providers or anyone who helps another get an abortion — or even intends to assist someone — after a fetal heartbeat has been detected. The person suing does not have to be connected to the person considering the abortion or to a provider — or even live in the state of Texas. If the accuser wins their case, the person or entity being sued would have to pay the accuser (or accusers) at least $10,000, as well as costs for attorney's fees, according to the law.

Whole Woman's Health, an independent abortion provider in Texas, challenged the law in an emergency application to the Supreme Court on the grounds that the six-week ban was unconstitutional. The Supreme Court remained mute on the subject until hours before the law went into effect, issuing an unsigned opinion consisting of a single, long paragraph that stated the abortion providers failed to make their case. Chief Justice John Roberts, who was appointed by Republican President George W. Bush, and left-leaning Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, dissented.

The Texas law was able to skirt a Supreme Court review at this juncture "because it relies on private actors to enforce the law [as opposed to state officials] and no one yet has enforced it," explains Stefanie Lindquist, foundation professor of law and political science at Arizona State University and a recognized expert on the Supreme Court. "Courts are very reluctant to resolve cases that have not yet reached a concrete dispute."

However, the U.S. Department of Justice has a different source of standing, she explains. On Sept. 9, 2021, the Department of Justice sued Texas on behalf of U.S. citizens on the grounds that Texas' abortion law is a violation of federal law. "The act is clearly unconstitutional under long-standing Supreme Court precedent," Attorney General Merrick Garland said during a news conference. The Justice Department filed the lawsuit in the Western District of Texas and was seeking a permanent injunction.

In October, Texas asked the court to block another lawsuit in federal court, this one from Texas abortion providers. However, the justices ruled to allow the challenge to go forward. The court ruled to defer action on the Biden administration's request to block the enforcement of the ban while the justices rule on the appeals.

When Roe went into effect in 1973, the majority of the court comprised Republican-appointed justices. Even Justice Harry Blackmun, who wrote the Roe v. Wade opinion, had been appointed by Republican President Richard M. Nixon. Since then, "the ideological orientation toward abortion has changed," Lindquist says. "The Republican Party is now firmly entrenched as the party that opposes abortion."

By degrees, the balance of the Supreme Court has been changing, and it was by design. Before President Donald Trump took office in 2017, he vowed to appoint justices to the Supreme Court to overturn Roe v. Wade.

Justice Anthony Kennedy's retirement in 2018, and Ruth Bader Ginsburg's death in September 2020, allowed Trump to do so, with conservative picks Brett Kavanaugh and Amy Coney Barrett. The Supreme Court now has a 6-3 conservative majority with all six taking positions against abortion at one point or another.

Since Roe was decided, legislators in conservative states have pressed to impose additional restrictions on abortion, but now they see a window of opportunity with the personnel changes at the Supreme Court, Lindquist says. "With the majority of justices being Catholic and most of them being appointed by Republican presidents, the assumption is that now is the time," she says. "Strike while the iron is hot. Legislation can finally get to the Supreme Court where Roe could be challenged and struck down."

The opportunity to entice the Supreme Court to revisit Roe v. Wade presented itself in Dobbs v. Jackson Women's Health Organization.

The case stems from a law passed by the Mississippi legislature in 2018 that banned abortions after the 15th week of pregnancy. Jackson Women's Health Organization, the only licensed abortion provider in Mississippi, challenged the law's constitutionality. A U.S. District Court sided with the clinic, reasoning that Roe v. Wade does not allow states to ban abortions in the first six months of pregnancy when the fetus is not yet viable outside the womb. The U.S. District Court of Appeals for the Fifth Circuit upheld that decision on appeal.

Mississippi took the case to the Supreme Court, asking the justices to weigh in on whether pre-viability bans on elective abortions are unconstitutional. On May 17, 2021, the Supreme Court announced it would review the case, which it heard oral arguments for Dec. 1, 2021, the outcome of which could impact the precedents set by both Roe v. Wade and Planned Parenthood v. Casey.

It does, so what does that mean? "Precedent is one of the cornerstones of our judicial system," Lindquist explains. Precedents are considered as authority for deciding subsequent cases involving similar facts or legal issues. The concept, called stare decisis, which means "let the decision stand" in Latin, provides stability and predictability in law.

"The system of precedent provides that when courts make decisions and those decisions become law, they will remain on the books until that same court or an appellate court overrules those precedents," Lindquist says.

Judges and justices often rely on precedents to make rulings in other cases. For example, five justices relied on precedent set by Casey when striking down a Louisiana law that would have required doctors performing abortions to have admissions privileges at a state-authorized hospital within 30 miles (48 kilometers) of the clinic.

The Supreme Court can overturn an existing precedent with a majority vote. And this happens surprisingly more often than the general public realizes, about two to three times per term, Lindquist says. "But these are cases that don't make the news," she says. "In the case of Roe v. Wade, obviously if the precedent is overturned, it would, in fact, disrupt many, many, many peoples' expectations and abortion providers' expectations about the legal restraints on their actions."

When a new precedent is established or law is changed on an issue, it is known as a "landmark decision."

If Roe is ultimately upended, the aftershocks would be felt immediately. According to the Guttmacher Institute, a worldwide research and policy organization, 11 states have trigger laws in place that would instantly ban abortions. Conversely, 14 states plus Washington, D.C., have laws in place to protect abortion access.

Overturning Roe would also add strength to Texas' fetal heartbeat law, Lindquist says. However, if Roe is upheld, "it will have major implications for the Texas case simply because it will reaffirm the core right to abortion prior to viability."

The Supreme Court isn't likely to deliver a decision in the Mississippi case until spring or early summer 2022. As of May 3, 2022, it's not clear that the leaked draft opinion represents the court's final say on the case.