The legal status of abortion in the States if Roe v. Wade is overruled

Issues in Law & Medicine, Summer, 2007 by Paul Benjamin Linton

ABSTRACT: This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators-on both sides of the issue-believe.

More than two-thirds of the States have repealed their pre-Roe laws or have amended those laws to conform to Roe v. Wade, which allows abortion for any reason before viability and for virtually any reason after viability. Pre-Roe laws that have been expressly repealed would not be revived by the overruling of Roe. Only three States that repealed their pre-Roe laws (or amended them to conform to Roe) have enacted post-Roe laws attempting to prohibit some or most abortions throughout pregnancy. Those laws have been declared unconstitutional by the federal courts and are not now enforceable.

Of the less than one-third of the States that have retained their pre-Roe laws, most would be ineffective in prohibiting abortions. This is (1) because the laws, by their express terms or as interpreted, allow abortion on demand, for undefined health reasons or for a broad range of reasons (including mental health), or (2) because of state constitutional limitations. In yet other States, the pre-Roe laws prohibiting abortion may have been repealed by implication, due to the enactment of comprehensive post-Roe laws regulating abortion.

In sum, no more than twelve States, and possibly as few as eight, would have enforceable laws on the books that would prohibit most abortions in the event Roe, Doe and Casey are overruled. In the other States

(and the District of Columbia) abortion would be legal for most or all reasons throughout pregnancy. Although the long-term impact of reversing Roe could be quite dramatic, the author concludes that the immediate impact of such a decision would be very limited. This article is current through May 1st, 2007.

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The death of Chief Justice Rehnquist, the retirement of Associate Justice O'Connor, and the possibility that one or more other justices may leave the Supreme Court during the remainder of President Bush's second term have fueled speculation that a differently-constituted Court may overrule Roe v. Wade, (1) as modified by Planned Parenthood v. Casey, (2) and return the issue of abortion to the States. This speculation is decidedly premature. Only two justices now on the Court--Associate Justices Scalia and Thomas--have voted to overrule Roe. Although Justice Kennedy dissented in the Supreme Court's decision striking down the Nebraska partial-birth abortion ban act seven years ago,(3) he did not join the dissenting opinions of Chief Justice Rehnquist, Justice Scalia and Justice Thomas calling for Roe and Casey to be overruled. (4) Chief Justice John Roberts and Associate Justice Samuel Alito may be expected to defer to reasonable efforts by the States to regulate the practice of abortion. Nevertheless, it is questionable whether the Chief Justice would be willing to overrule Roe and Casey without further erosion of both precedents, in light of his respect for precedent and his understanding of the evolutionary nature of constitutional adjudication. Much the same may be said of Justice Alito. (5) Given the intense scrutiny that would be given to any further vacancies on the Court in the next eighteen months, the possibility that President Bush would be able to place anti-Roe justices on the Supreme Court (even assuming that he would want to) is decidedly remote.

However remote an overruling decision may appear to be at this point, the mere possibility of such a decision has led to concern regarding the legal status of abortion in the States if Roe and Casey are overruled. Regrettably, much that has been written about the effect of an overruling decision is inaccurate or misleading. The purpose of this article is to evaluate, on a State-by-State basis, the impact of a decision overruling Roe v. Wade and Planned Parenthood v. Casey on the legal status of abortion. A review of the relevant statutes and cases leaves no doubt that, in the absence of new legislation, for which there would have to be a contemporary political consensus, abortion would be legal in the overwhelming majority of States at least through viability and very probably after viability, as well. Barely a handful of States would have laws on the books prohibiting abortions in most circumstances throughout pregnancy.

Alabama

The pre-Roe statute prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life or health and done for that purpose." (6) The statute, which has not been repealed, (7) has not been declared unconstitutional nor has its enforcement been enjoined. Because the scope of the health exception is not defined, the statute may not effectively prohibit many abortions, even if Roe v. Wade were overruled. (8)