Fact Check: Overturning Roe v. Wade Will Not Ban Abortion

It returns the matter to elected branches of government.

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Last week, Politico published a draft of a majority opinion for the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. The draft opinion is written by Justice Samuel Alito, and would overturn both Roe v. Wade and Planned Parenthood v. Casey if it holds (draft opinions have no legal force or effect, and opinions are final only when issued by the Supreme Court).

In the aftermath of this leak, social media was filled with people claiming that the Supreme Court was poised to “ban abortion.” A Variety article headline proclaimed “Howard Stern: Supreme Court Justices Who Ban Abortion Should Raise Every Unwanted Child.” Australian political commentator and former diplomat Bruce Haigh referred to “The US Supreme Court decision banning abortion” in a tweet. Another viral tweet reads: “The Supreme Court won’t force you to wear a mask in a pandemic — but it’ll force you to bear a child.” A number of other posts with the same claim can be found across social media. A 2019 public opinion survey found that nearly 66 percent of respondents similarly believe that overturning Roe and Casey would outlaw abortion in the United States. Those views are not accurate. Overturning Roe returns the matter to the elected branches of government.

Assuming the votes remain unchanged and a majority of justices vote to overturn Roe and Casey, such a decision would not make abortion illegal in the United States. Roe banned any abortion restrictions in the first trimester of pregnancy but allowed for restrictions in the second trimester and for prohibitions (with exceptions) in the third trimester.  

Planned Parenthood v. Casey later replaced the trimester framework with one based on viability. In Planned Parenthood v. Casey, the court noted that the point of viability had shifted to earlier in pregnancy than at the time of Roe, and could continue to shift as medical technology advanced. Currently, the point of fetal viability is thought to be around the 23rd week of pregnancy. With viability as the new line, the court held that states could enforce restrictions and prohibitions after viability, but restrictions on terminating pre-viable pregnancies could not pose an “undue burden” on the woman seeking the abortion.

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    Ben Connelly

    This must be the most comments on a dispatch fact check ever!

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  • Ed K

    If anyone has posted any truly novel arguments here, would you kindly summarize them? Otherwise it’s blah blah blah blah blah.

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  • JMcDade

    Alec’s argument feels a bit disingenuous. Given Mitch McConnell’s behavior with regard to the Supreme Court vacancies, he will use any legislative maneuvers necessary to outlaw abortion in the US. It doesn’t matter what he says now. Also, many state legislatures will move to outlaw it, even ones that permit it now. (Not to say necessarily all.) Many of these legislative majorities exist only because of gerrymandering and don’t necessarily represent the will of the people. I’m not discussing the right or wrong of the issue, just the idea that it is being returned to the “will of the people” instead of the courts deciding it. Also, Alito’s opinion seems to be very focused on HIS opinion not on the constitutionality of the issue — using words like egregious and citing laws that are a thousand years old. My issue here,again, is not to address the right or wrong but the sophistry of Alec’s argument.

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    Scarlette Tarte

    The supreme court, thru justice Thomas, is attempting to help the pro life movement encode a right to life in the constitution, thru the 14th amendment.

    The cons on the court believe the 14th actually PROHIBITS abortion.

    I realize you can't really speak to a situation until it happens, but the Dispatch is not being very honest about just how far the pro life movement and some of the justices are willing to go.

    I would like to hear a podcast or read an article that addresses the fact that many on the right are pushing for a constitutional prohibition on abortion.

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    Bill B

    Technically correct. It does not ban abortion. It simply allows the states to strip the agency from women on one of the most consequential decisions of thier lives.

    This is an irresolvable conflict that will never be settled to either side's satisfaction. The states, pro-life and pro-choice, will only impose cartoonish, moral grotesqueries on it's citizens in competing displays of affective polarization, i.e., "trigger" laws or the Women’s Health Protection Act. And the whole matter will end up in the Supreme Court once again.

    When an abortion should be prohibited is a primarily a religious and philosophical question. My own opinion is that the pro-life religious position relies as much on "penumbras" as the right itself but it doesn't seem to affect thier eagerness to strip women of a choice in the matter. Certainly we can set limits on it as a matter of common sense, medical knowledge and broad societal mores but theological emanations simply cannot be the basis for it. But the right should exist.

    A woman either has the right to decide whether to bring a pregnancy to term or not. If not, then it doesn't matter what "facts" the author brings to bear on the question. After fifty years, abortion will be effectively banned where it can be banned. That is simply a certainty. To whom will these women appeal and on what basis?

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  • Kathy Kattenburg

    "Overturning Roe and Casey would allow states (or potentially the federal government) to ban or restrict pre-viability abortions as long as the law was rationally related to a legitimate government interest. Such decisions would fall to state lawmakers and to members of Congress."

    Yes, Alec, but "rationally related to a legitimate government interest" is a meaningless requirement. I'm sure I don't have to spell out why.

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  • James Harris

    I respect your thoughtful opinions but you need to honest with yourself about an issue about which you have strong feelings. It’s not helpful to declare the Supreme Court “home free” for giving elected officials the potential privilege to ban all forms of abortion on a nation wide basis. You could still choose to develop suggestions that would help the large number of women that are feeling left out. thanks jim harris

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    Pat Riot

    Huh. If it won't ban abortion then why did anti-abortion fanatics work for the last 40 years to overturn RvW? Weird that they got it all wrong like that.

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