The Messy Post-Roe Legal Future Awaiting America
There’s no clean end to this story.
America now faces the very real possibility that in just a few months’ time, the Supreme Court will interpret the U.S. Constitution to no longer protect the right to abortion. On September 1, S.B. 8—the most stringent abortion ban since before Roe v. Wade—took effect in Texas. Completely ignoring the protections of Roe, the Supreme Court refused to intervene. Though the Court’s decision was procedural in nature, it speaks volumes about the justices’ view on the importance of abortion rights and the future of Roe. That will matter greatly when, later this term, the Court decides a different abortion case, Dobbs v. Jackson Women’s Health Organization, addressing a Mississippi law that, like S.B. 8 and the copycat laws coming down the pike, challenges the fundamental holding of Roe by banning abortion before fetal viability. If the Court does overturn Roe, much of the American legal landscape—and with it, the lived experiences of millions—could change overnight, and the result will be a giant, legal mess.
For decades, the anti-abortion movement has argued that Roe and its progeny must be overturned because the legal rules they created—such as the undue-burden standard, viability as a dividing line, and the contours of the health and life exceptions—resulted in inconsistency and were unworkable for the courts. According to this argument, the legal standards are too imprecise, difficult to apply, and unmoored from the Constitution’s text, leading different courts to reach different conclusions. As Justice Antonin Scalia once complained in his dissent in Planned Parenthood v. Casey, the case that upheld Roe but changed the constitutional test for abortion restrictions, the standard the Court applies is “inherently manipulable and will prove hopelessly unworkable in practice.” Last term, in the Court’s June Medical v. Russo decision, Justice Clarence Thomas, writing in dissent, made a similar claim, arguing that the Court’s “abortion jurisprudence remains in a state of utter entropy.” In other words, Roe must be overturned because returning abortion law to the states will be simpler.
Navigating a post-Roe country will be anything but simple. Perhaps the only certainty to expect is that a post-Roe country will be one of inequity. A little fewer than half of U.S. states, mostly concentrated in the South and the Midwest, are poised to ban abortion in almost all cases if the Supreme Court overrules Roe. Some of these bans will start immediately, either because of pre-Roe laws still on the books or new “trigger laws” that will take effect the moment Roe is overturned. Scholars and activists have long noted that wealthy women in those states will be able to travel to other states to obtain abortions. But three-quarters of people seeking abortions are low-income, a group that is disproportionately people of color, and they will face barriers that will make it almost impossible to get to another state.
For instance, imagine you are an indigent immigrant woman living in a rural area of the Rio Grande Valley in Texas. Getting to New Mexico, a state that will likely not ban abortion if Roe is overruled, depends on having a functioning car, money for a hotel room at your destination and gas for a 25-plus-hour round-trip drive, the ability to take multiple days off work, someone to care for your children if you have any, and the confidence that you can get through Texas’s internal immigration checkpoints without being held by authorities. Many faced with this daunting reality will choose to self-manage their own abortions by buying abortion medication online. (Though self-management is safe and effective in most cases, it comes with legal risks.) Others will realize that without legal abortion nearby, they have no choice but to carry their pregnancy to term. This isn’t speculation; when Texas temporarily suspended abortion provision as “nonessential” during the early months of the pandemic, women traveled longer distances for abortions, paid more out of pocket, considered self-management, and were occasionally thwarted from obtaining the procedure entirely. The same seems to be happening already in Texas since the implementation of S.B. 8, as the Department of Justice explained in last week’s petition seeking an emergency injunction against the law.
But beyond the inevitable inequality resulting from overturning Roe, not much else is clear. The basic rule of Roe is straightforward: Abortion before viability must be legal in every state. This rule may not ensure practical access everywhere—abortion care is very difficult to obtain in many places—but it does outline some clear prohibitions. However, if Roe is overturned, we will live in a country where every state creates its own rules. Some states will ban abortion almost entirely, some will allow it with substantial restrictions, and others will codify reliable and equitable abortion access. Consider the questions that will then arise: Can states criminalize women traveling across state lines to access abortion? Can a state where abortion is illegal prosecute a woman for homicide for killing one of its “citizens” (the fetus) in a state where abortion is legal? Particular to S.B. 8 in Texas, can a private citizen sue someone for helping a patient go across state lines to get a post-six-week abortion? Can a person sue a Texas-licensed physician who performs an abortion on a Texan in another state where the doctor also practices?
The changed nature of abortion care makes the potential answers to these questions all the more complicated. In today’s world, roughly four in 10 abortions occur via a pregnant person taking medication, often in the comfort of their own home. That means the patient doesn’t have to be in the same location as the provider prescribing the medication. In fact, the pandemic dramatically accelerated the use of telemedicine for abortion care, allowing women to receive an abortion without ever stepping foot in a clinic. In light of this new reality, a whole host of other tricky questions will arise if Roe falls: Can a state prosecute women taking pills shipped directly to their home from out-of-state providers? Can a state prosecute a woman for taking pills in her home state if she picked up the medication in a state where abortion is legal? If a patient takes the pills in one state where abortion is legal but the abortion isn’t completed until she goes back home, where abortion is illegal (the entire process is usually quick but can take several days), has she violated her home state’s law?
The legal complexities will be endless. In our federal system, states have to work within federal law, and a federal government that wants to protect abortion rights, as President Joe Biden announced he would last week, might employ some creative strategies to limit state law. Presently, the FDA is considering whether to lift unnecessary restrictions on medical abortion, including the requirement that patients pick up the pills at a medical facility. The FDA has temporarily suspended that rule, allowing wholly virtual clinics to prescribe medication and ship it directly to patients. Imagine if the FDA went further, and not only removed its own restrictions that limit the medication’s use but also prohibited states from imposing their own restrictions. Would that federal regulation preempt and therefore invalidate state restrictions on medical abortion? Relatedly, could the federal government take the bold action of leasing property to or establishing its own abortion clinics on federal lands, such as in federal-government offices or in national parks? Could federally recognized Native American tribes do the same, as the president of the Oglala Sioux Tribe suggested when South Dakota attempted to ban abortion in 2006? What about the federal government, as one commentator suggested, hiring abortion providers so that they are federal employees and thus immune from state lawsuits under statutes like S.B. 8?
Federal legislation is also possible. Congress is presently considering the Women’s Health Protection Act, which creates a statutory right to abortion and seeks to preempt state bans as well as most current state restrictions on abortion. But this is yet another area of legal uncertainty, as there is no doubt that courts, especially this Supreme Court, could decide that this law is too much of a threat to state sovereignty or that it was not properly passed pursuant to enumerated powers, thereby dismantling federal interventions and creating further confusion. And what if a future anti-abortion president and Congress teamed up to ban abortion nationwide? How would a conservative Supreme Court that has been skeptical of congressional power but also hostile to abortion rights resolve potentially competing beliefs?
This is complicated, mostly unprecedented terrain, and what will happen next to abortion regulation if Roe is overturned or severely limited depends on contested views of the Constitution and our federal structure. Our view on these difficult legal questions is that basic American principles related to the right to travel, limits on the ability of states to control activities outside their borders, and federal preemption of state law will make it difficult for states to regulate interstate abortion access effectively. These principles would also support some federal efforts to promote abortion access everywhere.
But the entropy and manipulability that anti-abortion justices claim exists now is not cause to overturn Roe. Much the opposite: Eliminating Roe will insert even more uncertainty and chaos into the law. The simplicity of the current rule—that abortion cannot be prohibited before viability—is far from the only reason to uphold Roe. But the legal quagmire that will result if Roe is overturned is yet another justification for upholding precedent and protecting constitutional rights to abortion.