Of all the forms of inflation Americans have suffered through in recent months, perhaps the worst kind has been threat inflation — the endless stream of doomsday prophecies and apocalyptic warnings that a coalition of theocrats, rubes, and “white supremacists” are secretly turning America into a real-life version of The Handmaid’s Tale. This was always off-base in a nation where children may be indoctrinated in Critical Race Theory and attend “drag queen story hour” in the same day. But nothing has thrown more fuel on this overheated rhetoric than the possibility that the Supreme Court might overturn Roe v. Wade.
Those fears went into overdrive on May 2, 2022, when someone took the exceedingly rare step of leaking a 98-page draft of the Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization. If accurate, the document indicates that a majority of justices intend to reverse Roe v. Wade. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” wrote Justice Samuel Alito, according to the draft. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
The opinion proves that “women are not viewed as equal to men” and that “women are losing their rights in this country,” CNN legal analyst Lauren Coates told Don Lemon on May 2. MSNBC’s Rachel Maddow returned to her eponymous show that evening to warn that Republicans would implement “South America-style” legislation if they win the 2022 midterm elections. The next morning, “Morning Joe” contributor Jon Meacham called the ruling a “nightmare scenario,” saying Alito’s draft decision, which would open the issue of abortion to the democratic process, raises “the great question of the era, [which] is: Are you and I, are we, in this decade, are we up to democracy? … And I’m worried that we’re entering the darkest period of that test.”
The pitched rhetoric began even before the Supreme Court agreed to hear cases involving two state laws that offer robust protections for the unborn: a Mississippi law limiting abortion to the first 15 weeks of pregnancy and the Texas Heartbeat Law prohibiting abortions on children who have a detectable fetal heartbeat, which occurs around six weeks. MSNBC’s Tiffany Cross said the High Court was seeking to transform the United States into “Gilead 2.0,” and some analysts, including former Planned Parenthood president Cecile Richards, erroneously claimed that “Roe was just overturned” following the adoption of the The hysteria ratcheted up further during oral arguments for Dobbs, which suggested a majority of justices seem open to overturning Roe, and reached a fever pitch with the leaked decision. Such extreme claims of an impending theocracy ignore what would actually happen if the justices decide to revisit this overreaching judicial diktat and allow the American people to have a greater voice in abortion policy for the first time since 1973.
What would happen if justices do overturn Roe v. Wade, the 1973 decision that first invented the novel legal doctrine that the U.S. Constitution contains an unwritten “right” to abortion?
For one thing, the Court would go a long way toward reestablishing its own credibility. Pro-life advocates and even many abortion activists agree on one thing: Roe v. Wade was one of the most egregious acts of judicial activism in history. Ruth Bader Ginsburg once called Roe “heavy-handed judicial intervention.” Edward Lazarus, a former clerk to Justice Harry Blackmun, who authored Roe, said “Roe borders on the indefensible,” because “it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent.” Revising such a baseless decision can only bolster the court’s reputation.
Overturning Roe almost certainly won’t end all abortions
While the most extreme voices warn that overturning Roe v. Wade would end all abortions nationally, that is not the most likely outcome. It’s true that the court could decide to recognize that all Americans enjoy an inalienable constitutional right to life, which science teaches begins at conception. The Fifth Amendment and Fourteenth Amendment both make it illegal for the government to deprive “any person” of “life, liberty, or property, without due process of law” — a fact Blackmun admitted in the Roe decision. (If the unborn child is recognized as a “person,” the newly minted right to abortion “collapses,” he wrote.) That possibility, though desirable, seems remote.
It is more likely that any court overturning Roe will rule that the Constitution is, in the words of Justice Brett Kavanaugh, “scrupulously neutral on the question of abortion — neither pro-choice nor pro-life.” Should justices arrive at this weaker conclusion, abortion will not grind to a halt nationally. Instead, the American people will finally be given the opportunity to choose abortion policies that reflect their values in a meaningful way for the first time in decades.
America already had a competing checkerboard of abortion laws before Roe. Colorado became the first state to legalize abortion in 1967, six years before Roe, under the leadership of future governor, then legislator, Richard Lamm (D). (Lamm would later show the consistency of his anti-life thought by saying that senior citizens “have a duty to die and get out of the way.”) Other states followed. Even then-Governor Ronald Reagan signed the California Therapeutic Abortion Law, which he thought would allow abortion only in extreme cases; the move became one of his lifelong regrets.
As Americans were sorting out their views, Roe v. Wade dictated from the bench that the newfound right to abortion extends to the point of viability. States may only pass laws prohibiting abortions after the child can live outside his or her mother’s womb, currently legally defined as 24 weeks — nearly the third trimester. Reversing Roe would return abortion law to the states.
How America would change after Roe
State laws would change. Many states have already passed laws that run the gamut from virtually banning abortion to fully funding abortion through all nine months of pregnancy in the event of a Roe reversal.
A dozen states have passed pro-life “trigger laws,” which would begin to protect preborn children the moment Roe is aborted. For instance, Kentucky’s 2019 Human Life Protection Act would make it a Class D felony to commit an abortion, except to save the mother’s life or prevent the “permanent impairment of a life-sustaining organ.” It would take effect upon “any decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade.” According to the Guttmacher Institute, the 12 states with such laws are: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and Utah.
Eight states that limited abortion-on-demand before Roe still have the law on the books; if the case is overturned, their state laws would go back into effect. Some of these state laws exemptions that allow abortion in the case of rape or incest, or for the “health” of the mother,” a concept so elastic that judges have stretched it to include almost any abortion.
On the other end of the spectrum, 13 states and the District of Columbia have passed state laws explicitly legalizing — and often funding — abortion-on-demand. For instance, then-New York Governor Andrew Cuomo (D) signed the 2019 “Reproductive Health Act,” which strikes down all pro-life laws in the state and allows abortion for any reason until 24 weeks, or until birth if an abortionist decides in “good faith” that an abortion is necessary “to protect the patient’s life or health.” According to the Kaiser Family Foundation, those states include: California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Nevada, New York, Oregon, Rhode Island, Vermont, and Washington. In addition, 16 states force taxpayers to pay for elective abortions through state Medicaid funds.
That covers the laws already in place, but more changes would come.
Pro-life protections would increase. Without the Supreme Court artificially restricting the will of the people, states would pass progressive protections for unborn children. For instance, nearly two-thirds of Americans (65%) say abortion should be illegal in all or most cases after the first trimester, according to AP-NORC poll released in June. That’s just the beginning. A 2019 Hill-HarrisX poll found that 55% of Americans support heartbeat bills. (And 21% of Americans believe the laws, which allow six weeks for abortions, are too liberal!) “The American people want a fresh debate and a new direction achieved by consensus and built on love for both mothers and babies,” said Marjorie Dannenfelser, president of the pro-life Susan B. Anthony List, in 2019.
Finally, these pro-life protections will have a real impact in reducing deaths and reversing America’s years-long birth rate bust.
Thousands of lives would be saved. Overturning Roe v. Wade would undeniably result in fewer abortions. A 2012 study found that comprehensive pro-life protections “in 17 states would result in a 6.0 percent decline in abortions.” Other studies set the number twice as high. Economist Caitlin Knowles Myers of Middlebury College estimated that, after Roe, abortions would plummet by at least 14%, saving roughly 100,000 lives a year.
That hardly seems like a dent in the deadly toll that followed the 1973 ruling. An estimated 62 million babies have been aborted in the United States from 1973 until 2021. According to official statistics from the CDC’s annual abortion surveillance 619,591 abortions took place in 2018, the most recent year for which data are available, and that excludes three states that do not report abortions (California, Maryland, and New Hampshire).
What would happen in ensuing years if the Supreme Court overturns Roe v. Wade? Millions of lives will be protected, judicial overreach would be rebuffed, and the American people will have a democratic choice about the most life-defining issue facing our nation.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.