The Supreme Court on Friday reversed Roe v. Wade, the landmark 1973 ruling that had established a constitutional right to an abortion before the point of viability. The new ruling, Dobbs v. Jackson Women’s Health Organization, upholds Mississippi’s state law barring abortion after 15 weeks, overturns nearly 50 years of precedent, and returns the most divisive issue in American politics to the state level.
Here’s a look at what comes next:
What will change in Massachusetts?
Nothing immediately, based on this ruling. On Friday, Governor Charlie Baker issued an executive order protecting Massachusetts abortion providers who may treat residents from states that ban abortion. The order prohibits such providers from losing their professional licenses or receiving other professional discipline based on out-of-state charges and prevents Massachusetts agencies from assisting another state’s investigation into an abortion or cooperating with extradition requests to other states.
In 2020, Baker vetoed the ROE Act, the Massachusetts bill that codified abortion rights into state law, taking issue with new provisions that permitted minors as young as 16 to get an abortion without parental consent and allowed abortions after 24 weeks in cases with a fatal fetal anomaly. The Legislature overrode his veto. The right to abortion is also protected under the state Constitution, according to a 1981 Supreme Judicial Court ruling.
Massachusetts is one of 16 states where abortion rights are protected. The others are: California, Connecticut, Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. As a result, abortion rights will be preserved all along the Northeast and West coasts. But even in those states, specialists project that it could take longer to schedule abortions based on increased demand from people traveling from states that restrict the procedure.
Which states will ban abortion immediately?
Thirteen states have trigger laws that will ban all or nearly all abortions now that Roe is overturned. They are: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming, according to the Guttmacher Institute, a research organization that supports abortion rights. (Some states, like Mississippi, have been pursuing multiple means of restricting abortion, and have laws on the books that would narrow the time frame in which an abortion is legal, as well as a trigger law that would abolish it outright, with very limited exceptions, after Roe is overturned.)
Another 13 states are expected to move quickly to restrict abortion, either by reactivating bans that were viewed as unconstitutional under Roe v. Wade or by enforcing laws that have been passed since then, according to the Guttmacher Institute. Those states are: Alabama, Arizona, Florida, Georgia, Indiana, Iowa, Michigan, Montana, Nebraska, Ohio, South Carolina, West Virginia, and Wisconsin.
Could this ruling be relied upon to craft legislation that bans abortion in all 50 states? Would that supersede state laws?
Yes. The opinion issued Friday quoted the language of Mississippi’s state law, which called a fetus an “unborn human being,” and overturned Roe, which referred to a fetus as a “potential life.” That opens the door for arguments that fetuses deserve legal protection, legal experts said. Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, told the Globe that in his draft opinion, “Justice Alito is providing something of a legal road map for people trying to criminalize abortion.” A federal law would trump all state laws.
Isn’t there any other federal recourse?
Practically speaking, yes. Politically speaking, no. Last fall, the US House of Representatives took its first-ever vote on a measure to protect abortion rights in federal law. But the Women’s Health Protection Act, which passed on largely partisan lines, could not pass the Senate in May. No Republican voted for it and Senator Joe Manchin, the conservative Democrat from West Virginia, voted against it.
President Biden has said he will explore actions he could take by executive order, moves that would be less sweeping but could feasibly improve abortion access. For instance, Senators Elizabeth Warren and Patty Murray led a group of Democrats urging Biden to compel federal agencies to protect abortion rights through a series of measures, including offering travel vouchers and child care services to people seeking abortions outside their home state; preventing the use of technology to track and penalize those who seek abortions; and encouraging the use of federal property for abortion services.
How much can states like Massachusetts protect abortion patients and providers from consequences in states that bar abortion?
That’s still unclear, but legal experts say the ruling could leave a state-by-state patchwork of contradictory laws that officials will have to fight in court. In Massachusetts, Baker’s order and a similar measure passed by senators could likely shield in-state providers from consequences for performing abortions on people from states that prohibit the procedure. But legal specialists said the state can’t likely protect those who have abortions in Massachusetts from being prosecuted in their home states. Nor could the state shield a provider who performed an abortion in Massachusetts on a patient from a state like Texas from being prosecuted there if the provider subsequently traveled there voluntarily.
Wouldn’t it violate the Constitution’s Commerce Clause for a state to prohibit residents from traveling to another state for a medical service?
A legal challenge could certainly be made, but it’s unclear whether the high court would take it up after returning this question to the states. The unsuccessful Women’s Health Protection Act tried to frame abortion rights as a matter of access under the Commerce Clause, mirroring the Civil Rights Act of 1964. But that approach has not always been successful. In 2000, the Supreme Court struck down parts of the Violence Against Women Act, rejecting the premise that Congress has the authority to regulate violent criminal conduct based on its effects on interstate commerce. And in a 2012 ruling on the Affordable Care Act, the high court rejected the argument that the federal government could use its power to regulate interstate commerce to require people to carry insurance.
What did Roe v. Wade say about viability? What did this ruling say?
The primary holding of Roe was that an abortion is a right until the fetus became viable, or capable of living outside the womb. That was based on the right to privacy contained in the Due Process Clause of the 14th Amendment. Dobbs abandons the question of viability, saying the “the basic legality of pre-viability abortion” will now be decided by states or Congress.
What is the typical point of viability today compared to 1973?
While some premature babies survive earlier delivery, viability today is typically between 23 and 24 weeks. In 1973, it was 24 to 28 weeks.