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Roe v. Wade is being targeted by restrictive abortion laws. Here’s a refresher on the landmark court decision

Activists held signs outside the Supreme Court in January. SAUL LOEB/AFP/Getty Images/AFP/Getty Images

Several states have passed abortion restrictions this year, approving bills that would severely limit or essentially ban the procedure. Most recently, Alabama approved a near-total ban this week that would make it a felony to perform an abortion at any stage of pregnancy. Missouri lawmakers followed with a ban on abortion beginning at eight weeks.

Lawmakers have approved these bills despite Roe v. Wade, a landmark 1973 US Supreme Court ruling that established constitutional protection for a woman’s right to an abortion.

State Representative Terri Collins, the Republican who sponsored Alabama’s abortion bill, said after its passage in the state Senate that the bill was “about challenging Roe v. Wade.”

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So what rights does Roe v. Wade specifically protect, and what is the constitutional backing for the right to an abortion? Will these new state laws survive legal challenges? Or could Roe, a 45-year-old ruling, be overturned?

Establishing Roe

In 1970, a pregnant Texas woman identified by the pseudonym Jane Roe filed a lawsuit challenging a Texas law that threatened doctors with fines or jail time if they performed an abortion. When a district court struck down the Texas law, the state appealed to the Supreme Court, which decided the case in 1973.

In a 7-2 ruling, the Supreme Court upheld Jane Roe’s right to have an abortion and came to two significant conclusions. First, states could not explicitly restrict abortion before the end of the first trimester, and second, if states chose to regulate abortions before a fetus is viable — meaning the point after which a baby could reasonably survive outside a womb — they had to do so to protect the “maternal health.”

Following viability, states could regulate or ban abortion to preserve the “potential life” of the fetus, with exceptions for the health of the mother.

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The due process clause of the 14th Amendment was the main legal backing for the decision.

And although the practical conclusion of Roe v. Wade is that women hold a constitutional right to have an abortion, legally, the decision in Roe also focused on doctors’ rights to decide to administer an abortion.

That’s why some challenges to Roe, including Alabama’s heartbeat bill, punish doctors who administer abortions rather than the women who seek them.

Challenges to Roe

Since 1973, the Supreme Court has ruled several times on the specifics of abortion law, including most prominently in 1992, in Planned Parenthood v. Casey. Four of the five justices appointed to the Supreme Court in the time between Roe and Casey were chosen by Republican presidents, and the court had become more conservative.

In that case, the Supreme Court voted 5-4 to uphold Roe and a woman’s right to have an abortion but introduced a new “undue burden” test for state laws restricting abortion.

In the majority opinion, the court decided that only state laws that had an “undue burden on a woman’s ability” to access an abortion were constitutionally disallowed. The court held that states could have an interest in the potential life within a fetus, marked by the moment of viability, and thus impose broader limits on abortions than Roe allowed.

As a result, following Casey, the “undue burden” test became the national standard for allowable abortion restrictions at the state level. But the court did not elaborate on the phrase “undue burden” and states passed laws with varying standards for abortion access.

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The most recent slate of abortion restrictions, like those in Alabama and Georgia, will probably be subject to a flurry of challenges. Some, like Kentucky’s, have already been blocked.

Overturning Roe

Part of the increased Republican emphasis on challenges to Roe v. Wade lies in the fact that the court has shifted to a five-justice conservative majority, after several years with four conservative justices, four liberal justices, and a swing vote — retired justice Anthony Kennedy.

Kennedy retired last year and was replaced, during a contentious nomination process, by Brett Kavanaugh, a conservative justice whose nomination was expected to swing the court toward an anti-Roe position. If the right case came along, the court’s five conservative justices — including Kavanaugh — could vote to overturn Roe.

That would run up against one of the Supreme Court’s long-term principles, known as stare decisis. Basically, stare decisis means that the court rarely completely overturns previous decisions, which are considered binding precedent. In Planned Parenthood v. Casey, the Supreme Court chose to uphold the right to abortion established in Roe, ruling that the normal stare decisis practice overrode their personal antiabortion convictions.

But all it takes to overrule an old case, even under stare decisis, are the votes of five justices.

And Kavanaugh could be the fifth vote antiabortion activists have been seeking.

During his confirmation process, e-mails from his time in the White House counsel’s office revealed that he advised George W. Bush’s administration against calling Roe the “settled law of the land,” given that the Supreme Court “can always overrule its precedent.” In contrast, during his 2006 confirmation hearings to become a federal judge, he declared he would follow Roe v. Wade “faithfully and fully.”

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Yet since Kavanaugh joined the court, he voted in favor of a restrictive Louisiana abortion law that the Supreme Court struck down, 5-4, in February, appearing to return to his conservative antiabortion roots as a judge. Chief Justice John Roberts, a George W. Bush appointee, joined the court’s four liberal justices in rejecting the law.

But Roberts has voted with the court’s conservative wing on abortion cases before, as recently as 2016. And Kavanaugh’s addition to the court means the conservative justices stand at five for the foreseeable future.

If a challenge to Roe makes it to the Supreme Court and those five agree to overturn it, the constitutional right of a woman to have an abortion, and of a doctor to administer one, could be revoked in many states, in some cases automatically.


Peter Bailey-Wells can be reached at peter.bailey-wells@globe.com. Follow him on Twitter @pbaileywells.