Abortion law Q&A: How a Supreme Court opinion in a blockbuster case could impact abortion rights

By Tierney Sneed, CNN

The Supreme Court on Friday reversed Roe v. Wade, the 50-year-old court precedent enshrining a right to abortion.

Doing so now gives state lawmakers the green light to aggressively limit or ban abortion.

Since a draft for Dobbs v. Jackson Women’s Health Organization was leaked last month, CNN readers have asked hundreds of questions about what a reversal of the Supreme Court’s abortion rights precedents would mean and how it will affect access to the procedure. The final decision released Friday closely tracked the leaked draft.

We’re reading as many questions as we can and answering some of the most popular here.

Is the Supreme Court actually overturning the law or merely saying the decision belongs with each state’s law?

The Supreme Court overturned previous court precedent that preempted state laws banning abortion before the fetus is viable, a point around 23 weeks into the pregnancy. In overturning the Roe v. Wade and Casey v. Planned Parenthood decisions, the Supreme Court allows states to pursue bans and other restrictions on pre-viability abortion.

The ruling will not have the effect of banning abortion nationwide. According to the logic expressed in the draft decision (and with the caveat that it can still be changed before the final opinion comes out), the question of abortion policy would then go to state and local lawmakers — and potentially federal lawmakers as well.

Will women get arrested for having an abortion if the Supreme Court deems it illegal?

An abortion-seeker’s criminal liability will depend on the abortion policies that her state put into place.

Leaders of the anti-abortion movement have said in the past that women shouldn’t be prosecuted for obtaining abortion, and that criminal laws prohibiting it should be aimed at abortion providers or others who facilitate the procedure. Several states with abortion prohibitions that would go into effect with a Roe reversal have language exempting from prosecution the woman who obtained the abortion, but an abortion ban in Wyoming appears to muddle this question with its reference to the “pregnant woman” in the relevant code.

There’s also nothing to stop lawmakers from passing laws calling for the prosecution of the people who sought the abortion. A state legislator in Louisiana recently proposed a bill that would charge women with murder for obtaining abortion, though that bill failed to advance. Critics of the anti-abortion movement also note that, even with Roe on the books, women have been prosecuted for pregnancies that ended in miscarriage or stillbirth.

What methods do lawmakers propose to enforce these laws? What can they legally do to find out if someone is pregnant?

The state abortion prohibitions that will go into effect with the Roe reversal don’t spell out specific enforcement tactics. The lengths local prosecutors will go to enforce abortion restrictions is very much an unanswered question. Before Roe, the aggressiveness of the enforcement of abortion bans often depended on the political environment, including the local environment that prosecutors were navigating. Now, some prosecutors in Democratic-leaning jurisdictions are vowing to not bring criminal charges under abortion restrictions that go into effect with the new Supreme Court opinion.

The information the prosecutors will seek from health care providers in order to enforce abortion bans IS very much a concern for reproductive rights advocates. HIPAA protections that typically shield an individual’s medical information from disclosure have exemptions for certain law enforcement contexts that may come into play if Roe is overturned. Likewise, there are concerns that the data that can be obtained from an abortion-seeker’s digital devices may be used to determine if she obtained an abortion. That could include information about her menstrual cycle in a period-tracking application, some fear, or search terms she uses for internet searches.

Based on the legal arguments contained in the leaked draft opinion, are there any other legal precedents and SCOTUS opinions that this ruling would overturn beyond Roe v Wade? What further rights and privileges could be at risk of being scaled back if the draft becomes the law of the land?

The draft Dobbs opinion — if it became the court’s formal ruling — wouldn’t overturn other closely watched precedents in areas like same-sex marriage, contraception and interracial marriage. Those cases, like abortion, are grounded in a right to privacy that is not explicitly laid out in the Constitution, but that the court has said is implied. The Supreme Court, in handing down Roe and its successor Casey, tied the right to an abortion to the precedents in 1965’s Griswold v. Connecticut and 1967’s Loving v. Virginia, which struck down state restrictions on contraceptives and interracial marriage, respectively. The 2003 Lawrence v. Texas ruling invalidating Texas’ anti-sodomy law and the 2015 Obergefell v. Hodges decision that legalized same-sex marriage nationwide relied on Loving and Griswold as well.

In the Dobbs draft that leaked, Alito went out of his way in his draft to describe Roe as distinct from those other rulings grounded in a right to privacy because, he wrote, “Abortion destroys…potential life.”

“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite,” Alito wrote. “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”

Still, skeptics see the Roe reversal as opening the door to challenges to those other precedents, with Obergefell being the most vulnerable. Alito himself wrote a dissent to the 2015 ruling that argued that “The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term ‘liberty’ in the Due Process Clause of the Fourteenth Amendment encompasses this right.”

Conservative lawmakers and legal advocates have also argued the court’s Obergefell precedent makes the same errors the court made in enshrining abortion rights.

The Mississippi law at issue bans abortion starting from 15 weeks after the last menstrual period. If the Supreme Court allows this law to stand, will it then be legal to ban abortion at earlier points in pregnancy? Will it be possible for states to ban medication-induced first-trimester abortions, which are the most common type? Many states seem poised to do so.

If the draft opinion that was leaked was adopted, not only would the Mississippi 15-week ban be upheld, but states — and potentially the federal government — would be allowed to ban abortion earlier in the pregnancy, including medication-induced first trimester abortions. More than a dozen states have so-called “trigger laws,” under which bans on abortion would be implemented if the Supreme Court overturns Roe, and several more have other types of bans that could go into effect with the reversal of previous Supreme Court precedent.

But until the court issues its final opinion, we won’t know for sure how aggressively states will be allowed to restrict abortion under the court’s new precedent.

In the event of rape or incest or even underage pregnancy of say 14 years old, where does the law lie for these individuals if Roe vs Wade is overturned?

If Roe is overturned, exemptions in abortion bans for rape, incest or health of the mother will vary state by state. In the wave of abortion limits that have been passed by state legislatures recently in anticipation of the Supreme Court’s ruling, only a few of the proposals included exemptions for rape and incest.

It’s a question lawmakers will likely revisit once the Supreme Court’s ruling, assuming it overturns Roe, is handed down. While previewing plans to call a special legislative session once the opinion is issued, Republican South Carolina Gov. Henry McMaster said he opposed rape or incest exemptions. The six-week ban he signed into law last year — which is currently blocked by court order — included those exemptions.

On the flip side, Arkansas Republican Gov. Asa Hutchinson told CNN this May that he supported adding rape and incest exemptions in the trigger law currently on the books in the state.

How are in vitro fertilizations defined? If a state defines the fertilized egg as a human with rights, then if a doctor fertilizes four eggs, but does [not] implant all four in a woman, is that homicide?

What a Roe reversal would mean for fertility treatments is a major uncertainty.

Physicians and legal experts in the field are currently grappling with state abortion policies frame their laws around the moment of fertilization, when the egg has united with the sperm. Some of those state laws have language that would appear to exempt the disposal of unused embryos created for IVF, but that language doesn’t necessarily exempt the process of selective reduction, when a woman whose fertility treatments lead to a multiple pregnancy has one or more of those fetuses terminated to protect the viability of the other fetuses and/or the health of the mother. More broadly, fertility law experts raise concerns about how a Roe reversal will embolden lawmakers to regulate IVF procedures — which have been largely shielded from the abortion debate because of the protections of Roe.

If the current heavily conservative Supreme Court can overturn Roe v. Wade, that’s been on the books for decades, what’s to stop a future heavily liberal court from overturning this current anti-Roe v. Wade decision in say, 20 years from now?

Technically, there’s nothing to stop a Supreme Court from revisiting abortion precedent and a court with a more liberal makeup may very well do so. However, one reason that a future liberal Supreme Court majority might be disinclined to change a major precedent again is if those justices feel more loyalty to the principle of stare decisis — the legal principle that discourages overturning precedent unless certain conditions are met — than the loyalty that has been shown by the conservative majority poised to reverse Roe.

This respect for precedence, for instance, is why Chief Justice John Roberts voted in 2020 to strike down a Louisiana abortion clinic regulation, after he dissented in a 2016 case where the majority struck down a similar Texas law.

Can the right to an abortion be codified by a national vote?

Not directly. A constitutional amendment could be enacted to extend that right. But the process of amending US Constitution begins with a proposal that has the support of either two-thirds of both Houses of Congress, or with a convention called for by two-thirds of the states. Ratification of an amendment requires the support of three-fourths of state legislatures or three-fourths of conventions in each state.

Why does the currently Democrat-controlled legislature not pass a federal law making abortion legal? This would make the SCOTUS decision a non issue.

Democrats currently lack the votes to dismantle the Senate filibuster, a 60-vote procedural mechanism that Republicans can use to block federal abortion rights legislation — so as long as 40 senators oppose abortion rights. But it’s worth noting that the Women’s Health Protection Act — a bill would codify and expand upon Roe — failed 49-51 when it was voted on in May in the Senate, meaning that, even without the filibuster, it would have not become law.

There are also legal questions about whether it would be constitutional for federal lawmakers to enact a nationwide ban. The late Justice Antonin Scalia stressed in his legal writings about abortion that the policy-decisions belonged in the hands of individual states, while expressing skepticism that Congress has the constitutional authority to regulate the procedure. Friday, Alito used notably open-ended language that doesn’t limit the provenance of abortion legislation to state lawmakers.

Can anti-abortion states prevent women from crossing state lines to get an abortion in another state? It worries me that states could enact further laws restricting women the choice to leave the state to have an abortion.

Anti-abortion state lawmakers have already expressed interest in regulating conduct around abortion that happens outside of their borders. Perhaps the most aggressive example is a failed bill in Missouri that would have extended its abortion laws to out-of-state abortions if the mother is a Missouri resident or if “Sexual intercourse occurred within this state and the child may have been conceived by that act of intercourse.” That proposal hasn’t advanced, but there are other examples of this tactic that might move forward in the future. A handful of Texas lawmakers, for instance, are calling for penalties for companies that cover the costs for employees who travel out of state to obtain abortions.

The legal authority that state lawmakers have to reach beyond state lines is very much an open question and the topic of a coming law review article that provides more information about the relevant precedents.

Is it possible that women and men who are pro-choice could send abortion pills to women in other states with draconian anti-abortion laws?

With medication abortion — a two pill regimen that terminates a pregnancy — becoming the method used in a majority of abortions performed nationwide, red states have already been cracking down on the mailing of abortion pills and on administering the pills without an in-person visit with a physician. These state laws started gaining steam after the FDA allowed for the mailing of abortion pills in a pandemic-related move that has now been made permanent. If Roe is overturned, medication abortion will be covered by abortion bans and we might see other types of proposals to limit medication abortion.

But how to enforce these restrictions on mailing abortion pills is another question anti-abortion lawmakers are still working through. Texas last year updated its previously existing ban on mailing abortion pills to make it the type of crime that would warrant extradition. Blue states have countered with measures that would prohibit their state authorities from cooperating with such extradition requests.

There are also international sources from which women in anti-abortion states may seek delivery of medication abortion.

The-CNN-Wire
™ & © 2022 Cable News Network, Inc., a WarnerMedia Company. All rights reserved.