On Monday, in an unprecedented leak from the U.S. Supreme Court, Politico released a draft of Justice Samuel Alito’s majority opinion that would rescind Roe v. Wade, ending 50 years of abortion protection at the federal level. Although the final opinion is not expected until late June, Americans are justifiably wondering, is Roe v. Wade going to be overturned in the very near future? And if so, what does that mean? Let’s look at this issue using HeinOnline.
Important Court Decisions at Risk
The decision to overturn Roe v. Wade comes as a response to Dobbs v. Jackson,[1]Steven D. Schwinn, Does a State’s Ban on Abortion after 15 Weeks of Pregnancy Violate the Constitution? (19-1392), 49 PREVIEW U.S. Sup. CT. Cas. 16 (29). This document can be found in HeinOnline’s Preview of the … Continue reading the case challenging a Mississippi law that bans abortions after 15 weeks (Note: This case is featured in a recent issue of Preview of United States Supreme Court Cases in HeinOnline). Oral arguments in this case were heard on December 1, with a final opinion expected in early summer. In the draft opinion, Alito states, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision….”
Roe v. Wade[2]Roe et al. v. Wade, District Attorney of Dallas County, 410 U.S. 113, 178 (1973). This case can be found in HeinOnline’s U.S. Supreme Court Library. was a landmark decision made in 1973 which interpreted the 14th Amendment’s[3]Timothy Farrar. Manual of the Constitution of the United States of America (1867). This document can be found in HeinOnline’s World Constitutions Illustrated database. “right to privacy” to include a pregnant person’s right to choose to have an abortion without significant government interference.
In 1992, in the case Planned Parenthood v. Casey,[4]Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, Governor of Pennsylvania, et al, 505 U.S. 833, 1002 (1992). This case can be found in HeinOnline’s U.S. Supreme Court Library. the Court reaffirmed Roe and instituted the “undue burden” test, which would strike down any law that created an undue burden for a woman seeking an abortion.
If the majority opinion draft as it stands is finalized, both Roe and Casey will be overturned, and there will be no federal protection of the right to an abortion. According to Alito, abortion rights should be in the control of individual states: “It is time to heed the Constitution and return the issue of abortion to the people’s representatives.”
The five Supreme Court justices siding to overturn Roe are Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas. However, it is interesting to note that Neil Gorsuch[5]280 (2018)Confirmation Hearing on the Nomination of Hon. Neil M. Gorsuch to Be an Associate Justice of the Supreme Court of the United States: Hearing before the Committee on the Judiciary, United States Senate, One Hundred Fifteenth Congress, First … Continue reading stated in his Supreme Court nomination hearing that he would not support overturning Roe v. Wade. Brett Kavanaugh,[6]William H., Compiler, Editor Manz. Supreme Court of the U.S. Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee. This document can be found in HeinOnline’s History … Continue reading when asked about his views, was reluctant to provide a straight answer.
Chief Justice John Roberts has stated that he does not want to fully overturn Roe, but his decision is not yet for certain. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan are working on dissents.
What Could Happen if Roe Is Overturned?
If Roe is overturned, states will have the freedom to pass abortion restrictions. Currently, 21 states have laws or amendments in place that would ban abortion. Five other states are also likely to ban abortion if federal protections are removed or weakened. In fact, there are currently more than 500 laws that have been introduced in 42 states that are designed to restrict abortions. Check out our National Survey of State Laws database to view and compare current abortion laws at the state level.
According to the Guttmacher Institute, the following 26 states are likely to significantly restrict abortions if Roe is overturned: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
However, according to CNN, only 30 percent of Americans actually support fully overturning Roe v. Wade.
What’s Next?
Several Democratic senators are calling for an end to the filibuster in order to pass legislation protecting abortion rights. However, with Democrats Joe Manchin and Kyrsten Sinema both against ending the filibuster, it is not likely that the requisite 60 votes needed to eliminate it will be reached. As of Tuesday morning, President Biden released a statement demonstrating his support for Roe v. Wade: “I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.” If Roe is overturned, it is uncertain what may happen with other similar rights earned by Supreme Court decisions, such as access to contraception (Griswold v. Connecticut[7]Griswold et al. v. Connecticut, 381 U.S. 479, 531 (1965). This case can be found in HeinOnline’s U.S. Supreme Court Library.) and marriage equality (Obergefell v. Hodges[8]Obergefell et al. v. Hodges, Director, Ohio Department of Health, 576 U.S. Reports – Preliminary Prints 644 (2015). This preliminary print can be found in HeinOnline’s U.S. Supreme Court Library.).
Additional Resources in HeinOnline
You can continue your research on this topic in HeinOnline’s Law Journal Library by selecting “Abortion” from our PathFinder Subjects. You can sort the results by Volume Date (Newest First) and select “Articles” under Section Type in order to find the most recent articles published, including titles such as:
- Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: the Limits and Opportunities of Offensive Litigation[9]Howard M. Wasserman & Charles W. Rhodes, Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: the Limits and Opportunities of Offensive Litigation, 71 AM. U. L. REV. 1029 (2022). This … Continue reading
- Nearly 50 Years Post-Roe v. Wade and Nearing Its End: What Is the Evidence that Abortion Advances Women’s Health Equality?[10]Helen M. Alvare, Nearly 50 Years Post-Roe v. Wade and Nearing Its End: What Is the Evidence that Abortion Advances Women’s Health Equality?, 34 REGENT U. L. REV. 165 (2021). This article can be found in … Continue reading
- Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade[11]Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 HARV. L. REV. 2025 (2021). This article can be found in HeinOnline’s Law Journal Library.
- Abortion Convictions before Roe[12]Paul Benjamin Linton, Abortion Convictions before Roe, 36 Issues L. & MED. 77 (2021). This article can be found in HeinOnline’s Law Journal Library.
- The Body as Borderland: The Abortion (Non)Rights of Unaccompanied Teens in Federal Immigration Custody in the Trump-Pence Era[13]J. Shoshanna Ehrlich, The Body as Borderland: The Abortion (Non)Rights of Unaccompanied Teens in Federal Immigration Custody in the Trump-Pence Era, 28 UCLA WOMEN’s L.J. 47 (2021). This article can be found in … Continue reading
Or, check out our Women and the Law (Peggy) database, which features a subcollection specifically dedicated to Abortion, and contains helpful titles such as Documentary History of the Legal Aspects of Abortion in the United States. Additional titles related to abortion law can be found in the William S. Hein & Co., Inc. catalog.
Our HeinOnline bloggers have also written several blog posts on reproductive rights and Roe v. Wade, including:
Roe v. Wade Threatened in Supreme Court Shadow Docket Ruling
In a 5-4 ruling, the Supreme Court of the United States issued a shadow docket refusing to block a Texas law banning abortion after six weeks. This new law violates the 1973 landmark decision Roe v. Wade, which declared a pregnant person has a constitutional right to an abortion.
“Heartbeat Bills” and the Push to Overturn Roe v. Wade
Several states have passed “heartbeat bills,” prohibiting abortions after 6 weeks of pregnancy. Their goal is to push the boundaries of Roe v. Wade, bringing the issue back to the Supreme Court to overturn the landmark case.
7 Milestone Moments in the Fight for Women’s Rights
March is Women’s History Month, but the fight for gender equality in the United States is ongoing. While we continue to work towards a more equitable future, it’s the perfect time to review some milestone moments in the women’s rights movement.
Be sure to subscribe to the HeinOnline Blog as we follow along closely with the Supreme Court’s decision.
HeinOnline Sources
| ↑1 | Steven D. Schwinn, Does a State’s Ban on Abortion after 15 Weeks of Pregnancy Violate the Constitution? (19-1392), 49 PREVIEW U.S. Sup. CT. Cas. 16 (29). This document can be found in HeinOnline’s Preview of the United States Supreme Court Cases. |
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| ↑2 | Roe et al. v. Wade, District Attorney of Dallas County, 410 U.S. 113, 178 (1973). This case can be found in HeinOnline’s U.S. Supreme Court Library. |
| ↑3 | Timothy Farrar. Manual of the Constitution of the United States of America (1867). This document can be found in HeinOnline’s World Constitutions Illustrated database. |
| ↑4 | Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, Governor of Pennsylvania, et al, 505 U.S. 833, 1002 (1992). This case can be found in HeinOnline’s U.S. Supreme Court Library. |
| ↑5 | 280 (2018)Confirmation Hearing on the Nomination of Hon. Neil M. Gorsuch to Be an Associate Justice of the Supreme Court of the United States: Hearing before the Committee on the Judiciary, United States Senate, One Hundred Fifteenth Congress, First Session. This document can be found in HeinOnline’s U.S. Congressional Documents database. |
| ↑6 | William H., Compiler, Editor Manz. Supreme Court of the U.S. Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee. This document can be found in HeinOnline’s History of Supreme Court Nominations database. |
| ↑7 | Griswold et al. v. Connecticut, 381 U.S. 479, 531 (1965). This case can be found in HeinOnline’s U.S. Supreme Court Library. |
| ↑8 | Obergefell et al. v. Hodges, Director, Ohio Department of Health, 576 U.S. Reports – Preliminary Prints 644 (2015). This preliminary print can be found in HeinOnline’s U.S. Supreme Court Library. |
| ↑9 | Howard M. Wasserman & Charles W. Rhodes, Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: the Limits and Opportunities of Offensive Litigation, 71 AM. U. L. REV. 1029 (2022). This article can be found in HeinOnline’s Law Journal Library. |
| ↑10 | Helen M. Alvare, Nearly 50 Years Post-Roe v. Wade and Nearing Its End: What Is the Evidence that Abortion Advances Women’s Health Equality?, 34 REGENT U. L. REV. 165 (2021). This article can be found in HeinOnline’s Law Journal Library. |
| ↑11 | Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 HARV. L. REV. 2025 (2021). This article can be found in HeinOnline’s Law Journal Library. |
| ↑12 | Paul Benjamin Linton, Abortion Convictions before Roe, 36 Issues L. & MED. 77 (2021). This article can be found in HeinOnline’s Law Journal Library. |
| ↑13 | J. Shoshanna Ehrlich, The Body as Borderland: The Abortion (Non)Rights of Unaccompanied Teens in Federal Immigration Custody in the Trump-Pence Era, 28 UCLA WOMEN’s L.J. 47 (2021). This article can be found in HeinOnline’s Law Journal Library. |
