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More than two-thirds of the States have expressly repealed their pre-Roe laws or have amended those laws to conform to the trimester scheme of Roe v. Wade, which allows abortions for any reason before viability and for virtually any reason after viability. Those laws would not be revived by the overruling of Roe. Only a few of those States have enacted post-Roe laws that would prohibit most abortions if Roe were overruled. Slightly less than one-third of the States have not expressly repealed their pre-Roe laws. Many of those laws would not be effective to prohibit abortion if Roe were overruled either because they allow abortion on demand, for undefined reasons of health or for mental health reasons; because enforcement would be precluded on state constitutional grounds; or because the pre-Roe laws prohibiting abortion have been repealed by implication with the enactment of post-Roe laws regulating abortion. In sum, no more than eleven States, and very possibly as few as eight, would have laws on the books that would prohibit most abortions if Roe were overruled.
The possibility that a Republican will be elected president this November and the likelihood that whoever is elected president will have an opportunity to name one or more justices to the Supreme Court during his term of office have fueled speculation that a differently constituted Court may overrule Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992), 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. Chief Justice Roberts and Associate Justice Alito are believed to be "anti-Roe," but in the abortion cases in which they have participated to date, they have not voted to overrule Roe.
Although Justice Kennedy dissented in the Supreme Court's decision striking down the Nebraska partial-birth abortion ban act in 2000, (1) he did not join the dissenting opinions of the late Chief Justice Rehnquist, Justice Scalia and Justice Thomas calling for Roe and Casey to be overruled. (2) Nor, in his majority opinion for the Court in Gonzales v. Carhart, 550 U.S. 124 (2007), upholding the federal Partial-Birth Abortion Ban Act, did Justice Kennedy express any dissatisfaction with Roe, as modified by Casey, or even hint that either decision should be overruled. Thus, even assuming that both Chief Justice Roberts and Justice Alito were willing to overrule Roe (and neither justice has so indicated to date), there would still have to be at least one more vacancy on the Court after the 2012 election before there was even a possibility that Roe and Casey could be overruled by a combination of new appointments and present justices. And that possibility would require the election of a president who was opposed to Roe, who was willing to appoint an anti-Roe justice to the Court regardless of the political opposition to such an appointment and who was able to obtain Senate approval of the nominee (possibly requiring a cloture vote to end a filibuster), as well as a case properly presenting that issue to the Court.
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. …