Abortion in the United States: The Battle Begins

The leaked U.S. Supreme Court draft opinion does not herald the end of abortion, but the beginning of an endless cycle of political and judicial fights.

The news that the Supreme Court of the United States is set to overturn the 1973 Roe v. Wade decision that legalized abortion across the country, revealed by the website Politico, was a bombshell.

But contrary to the impression left by indignant reactions from all sides, including on social media, this will not be the end of abortion in the United States. It will, rather, be the start of an endless political and judicial fight.

First, an important clarification when Roe v. Wade is at issue: Its reversal would not bring about a ban on abortions. Prior to the ruling, there was no federal law banning abortion. Rather, the decision recognized the constitutional right to an abortion, consequently invalidating the various state laws that prohibited the practice.

Overturning Roe v. Wade, then, would not render abortion illegal in the United States, but would mean that states could restrict access to the medical procedure as they wish. This distinction has two key implications. The first, of course, is that without Roe, states would be free to pass new laws to limit or even outlaw abortion. Second, states that already had laws prior to 1973 would see them reinstated. After all, they were invalidated by the Roe decision, so overturning it would mean reversing their invalidation.

This is where the matter could become extremely complicated and what follows difficult to predict.

The Return to the Pre-1973 World

There are states that are more Democratic and committed to abortion rights, like California, Hawaii and New York. In these states, generally speaking, there would be a return to a situation where abortion was already legal, or where laws would be passed guaranteeing the right.

States more opposed to abortion rights, like Arkansas, Oklahoma and the Dakotas, would see a return to a situation where abortion was restricted, even criminal. In cases where laws would not be deemed sufficiently strict, majority-Republican legislative assemblies would certainly look to strengthen them.

There could also be popular referendums in which the public would be given the opportunity to legislate directly on the matter. The question would then be just how far voters are willing to go to limit abortion, as well as how far they are willing to go to punish those who practice it.

Then, there is the heart of the matter: the more moderate states where political forces for and against abortion rights can both hope to gain the upper hand. In various parts of the country, things could become particularly tense.

In Michigan, for example, a state Donald Trump won by a slim margin in 2016 and Joe Biden narrowly in 2020, the law regulating abortion pre-Roe v. Wade dates back to 1931. It outlaws abortion regardless of the duration of a pregnancy, including in cases of incest and rape. In other words, it goes very far and would come back into force if Roe were overturned. The state, then, would have to legislate to repeal its own law.

But Michigan is divided. On one side, Gretchen Whitmer, the resolutely pro-choice Democratic governor who promises to fight to defend the abortion rights; on the other, the two legislative chambers, which are majority-Republican and much less inclined to legislate in this direction.

This type of impasse would no doubt play out in other states. Once the deadlock is resolved — for example, by the election of a new, uniformly pro-choice government — anti-abortion candidates would commit to repealing the law once they are elected. Add to these popular referendums, whereby citizens of various states could be called upon to legislate the abortion issue themselves.

Of course, if the Politico revelation is confirmed when the ruling is announced in June, abortion rights supporters, in turn, would mobilize as their foes have for years and, like them, seek to change the composition of the Supreme Court. It is an endless cycle that has just begun.