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.