What comes next after the Supreme Court’s signal on abortion rights
By Tierney Sneed
At stake in the Mississippi abortion case heard by the Supreme Court December 1 is access to the procedure for millions of people across the country.
As Justice Brett Kavanaugh made clear at Wednesday’s hearing, the justices are not considering whether to outlaw abortion nationwide. But a decision that overturns current Supreme Court precedent on abortion rights — and one that specifically reverses the landmark 1973 Roe v. Wade opinion — could lead to bans on abortions being implemented in several states across the country.
Such a scenario would further cement an environment where a person’s access to the procedure depended on the state she lived in, as state legislatures and state courts would get to decide how much abortion should be restricted.
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A dozen states already have on the books so-called “trigger” laws, where bans on abortion would be put into force by a Supreme Court decision reversing Roe. Where legislators are considering passing new restrictive laws after the Supreme Court’s decision, major legislative and legal battles are brewing in anticipation that the Supreme Court is about to green light severe restrictions or outright bans.
“There are going to multiple fights in the states, and then waiting to see what the court will do, and all of it will be very intense across the country,” said Elizabeth Nash, a senior state issues manager at the think tank the Guttmacher Institute, which favors abortion rights.
When will the court be announcing its decision in the case?
The most likely scenario is that the decision is handed down in June, as the court typically issues its most high-profile opinions right before it wraps up for a summer break.
The case, Dobbs v. Jackson Women’s Health Organization, stems from a lawsuit filed by abortion providers challenging Mississippi’s 2018 law prohibiting abortion after 15 weeks into pregnancy. The ban is currently on hold due to lower court orders that cited the current Supreme Court precedent protecting the right to an abortion until fetal viability, a point around 24 weeks into the pregnancy.
It’s also possible the justices will issue an opinion sooner in a separate abortion case, coming out of Texas, that will hint at where the court is headed on Roe v. Wade. In the Texas case, concerning the state’s 6-week ban, the justices were reviewing the procedural mechanism the state is using to implement the prohibition, so the dispute doesn’t require them to address Roe head on. But the lack of urgency from the court in handling the Texas case has been seen by some as a sign that the conservative majority may be planning to overturn Roe as soon as next year.
What will happen if the Supreme Court overturns Roe?
If Roe is fully reversed, states across the country will be able to implement full bans on abortion, as well as other types of restrictions that had previously been blocked under Roe and other Supreme Court precedents. For the states that already have trigger laws in place, how long it will take for those laws to go into effect will depend on their design and on how clear cut the court’s opinion is.
Some states’ trigger laws carve out a role for the state’s attorney general to certify that the court’s opinion satisfies the conditions laid out in the law for triggering the ban. Some trigger laws also set out specific timelines for when the bans will go into effect after the ruling.
“If (the opinion) is not that clear, the state AGs will have a really important role in helping the legislature and the governor understand what the ruling does mean for state laws,” said Katie Glenn, the government affairs counsel for the anti-abortion group Americans United for Life.
In addition to the 12 states that have trigger laws, several others have bans or other types of extreme limits that restrict abortion after the early stages of the pregnancy that are currently blocked by courts under Roe.
“There will be a lot of governors and AGs excited to go back to court and get some of those injunctions removed,” Glenn said, pointing to Arkansas’ successful efforts to revive blocked laws after an opinion written by Chief Justice John Roberts in a 2020 case.
How long will it take for post-Roe bans or restrictions to take effect?
While some laws already in place may take effect quickly, others will face additional rounds of litigation that could take years resolve, Glenn said.
“There will be so many states and so many courts,” Glenn said, including states like Florida, Iowa and Montana where their state Supreme Courts will likely have to weigh in.
Other states that don’t have extreme limits or bans on the books may act quickly to pass them. States like Florida, Indiana, Montana, Nebraska and Wyoming — where Republicans control the governorship and the legislatures — appear poised to act quickly in the event of that Roe is overturned. Depending on when the court’s opinion comes down, some states may consider convening special legislative sessions to do so.
What kind of new laws might be passed?
Some GOP-controlled states might not go as far banning abortions, but would instead pass other types of restrictions that might not otherwise have been delayed in court under Roe. Glenn pointed to the type of clinic regulations that were at the heart of a 2016 Supreme Court case, where the court struck down a Texas clinic regulation.
Republican legislators have shown a particular interest in cracking down on medication abortion, especially in light of an expected move by the Biden administration to loosen up FDA regulations around that method.
“Medication abortion has really become a major method of abortion over the last 10 years, it’s all pointing towards conservative states placing more restrictions on it,” Nash said.
Will it just be red states that are impacted?
The aftermath of a Roe reversal would not just be felt in the red states that would then implement new restrictions, where abortion-seekers could need to travel great distances to reach their nearest clinic.
Blue states that would maintain access to procedure would likely see a spike in out-of-state patients, which could in turn affect how easy it is for their own residents to obtain the procedure.
According to an analysis from the Guttmacher Institute that assumed that 26 states would ban abortion if Roe was reversed, Illinois would offer the closest clinic for some 9 million women in the states most likely to ban abortion. The fallout from the Texas six-week ban previews the impact for abortion-friendly states if other states are allowed to ban the procedure.
Providers in Oklahoma said in the Texas litigation that the flood of Texas patients seeking appointments at their clinics significantly increased the time it took to secure an appointment. Before the ban, appointments could be made just a few days in advance; after the Texas law went into effect, the wait stretched to as much as three weeks, according to court filings.
Is it possible that the court doesn’t overrule Roe? What happens then?
Despite the signals Wednesday from five of the justices that they were inclined to reverse Roe, there’s still the possibility that the court takes an ostensibly middle ground approach that would give states more flexibility to restrict the procedure without fully wiping away the current precedent. That was the route Roberts appeared to be advocating for.
Roberts seemed to be hinting at an opinion that would uphold Mississippi’s ban with a reworked standard around people having a “fair choice” to obtain the procedure. Based on the justices’ comments, there wasn’t much interest on the rest of the court for taking that approach.
Still, the Supreme Court has produced surprises in the past. If Roberts does wrangle such a compromise, it will still represent a severe undermining of Roe and open up the door to all sorts of limits on the procedure.
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A ruling that nixed court’s precedent around viability, Nash said, “really takes the strength out of the (Roe) decision and leaves us with a lot unknowns and the potential for many more restrictions.”
“We could be looking many more restrictions on how abortion clinics are regulated, or restrictions that make it harder to get to care — like even longer periods,” Nash said, “or more hoops to jump through to access various methods of abortion.”
This landscape would yield complicated and contradicting legal fights, as any ambiguity in this hypothetical new standard would be interpreted differently by different judges. Judges in the parts of the country where federal courts lean more to the right may be inclined to uphold almost any restriction under whatever middle ground standard Roberts is thinking, while other judges may interpret it in a way more favorable to abortion rights.
What will be happening while we wait to see what the court does?
With the signs pointing to the court doing something aggressive to roll back abortion rights, advocates on both sides of the issue are seeking to lay the groundwork for what comes next. Some state legislatures may seek to pass legislation in their sessions next spring in anticipation for a Roe reversal. In blue states, that could be bills that shore up access — like a New Jersey proposal that would loosen up certain abortion regulations and require insurance coverage of the procedure.
“I could see more legislation in the progressive states doing what more they can to protect abortion rights,” Nash said, as she pointed to such plans announced by Democratic Colorado lawmakers after Wednesday’s hearing.
Another place to watch is how the fight over abortion rights is shaping up in state courts. If the Supreme Court says there are no protections in the US Constitution for abortion rights, state constitutions — particularly those that have clauses concerning privacy or equal rights — will be a tool used by abortion rights advocates to fight restrictions in court.
Several red states have amended their constitutions to make clear that they don’t protect abortion rights, and states like Kentucky and Kansas are already seeking to do so in ballot initiatives next year. Where the question of a state constitution’s protection for abortion rights hasn’t been clarified, expect battles in state courts that will test the ability of legislators to restrict the procedure.
“There are a couple of state court cases that are going to have a profound impact,” Glenn said, while pointing to litigation already underway in Montana over measures passed this year that scale back abortion access..
“A Roe reversal will help with them,” Glenn said, “but ultimately they will need to argue it in the state system.”
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