A leaked copy of a Supreme Court opinion, published by Politico, shows the court could overturn the 1973 Roe v. Wade case that made abortion legal nationwide.
This led to questions from many of our VERIFY viewers and social media users. Some people claimed that, if the court does decide to overturn Roe v. Wade, the decision wouldn’t make abortion illegal throughout the country and would instead send the issue to individual states.
Can states pass abortion laws if Roe v. Wade is overturned?
- Supreme Court’s 1973 ruling on Roe v. Wade
- Supreme Court Justice Samuel Alito’s draft majority opinion on Dobbs v. Jackson Women’s Health Organization, published by Politico
- The Guttmacher Institute, a pro-choice policy and research organization
- Liza Fuentes, senior research assistant at the Guttmacher Institute
- Benjamin Barton, a law professor at the University of Tennessee Knoxville
Yes, states can pass their own abortion laws if Roe v. Wade is overturned. Those state laws could either protect access to abortions, restrict access, or ban abortions entirely.
WHAT WE FOUND
In its 1973 ruling on Roe v. Wade, the Supreme Court found that a fundamental right to privacy is inherent in the Fourteenth Amendment’s due process clause, and a person’s right to choose whether to have an abortion falls within the right to privacy.
The court’s decision made it illegal for states to regulate abortion in the first trimester of pregnancy. In the second trimester, states can impose some regulations on abortion that are “reasonably related to maternal health.” Once the fetus reaches the point of “viability” in the third trimester, or the point where it could survive outside the womb with medical support, a state can regulate or ban abortions, “so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.”
However, Supreme Court Justice Samuel Alito wrote in the draft majority opinion on Dobbs v. Jackson Women’s Health Organization, which would overturn Roe v. Wade, that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” including the Fourteenth Amendment.
If Roe v. Wade is overturned, the right to an abortion in the first trimester would no longer be federally protected. But that doesn’t mean abortion would be illegal in all of the United States.
Liza Fuentes, a senior research assistant at the Guttmacher Institute, told VERIFY that individual states would be able to make their own laws about abortions. Benjamin Barton, a law professor at the University of Tennessee Knoxville, agrees.
“If the draft opinion becomes the actual majority opinion, there would no longer be a federal Constitutional right to an abortion, so the decision as to whether to allow abortions or not would be up to individual states,” he wrote in an email to VERIFY.
About a dozen states have “trigger laws” to ban all or nearly all abortions set to go into effect if Roe v. Wade is overturned. According to the Guttmacher Institute, more than two dozen U.S. states are “certain or likely” to ban abortions in the absence of Roe.
On the other hand, some states have passed laws guaranteeing the right to have an abortion without state interference.
South Dakota Gov. Kristi Noem says she will call for a special legislative session to restrict access to abortions. The state already has a “trigger law” on the books that would ban most abortions if the Supreme Court overturns Roe v. Wade.
In January 2022, New Jersey Gov. Phil Murphy signed the Freedom of Reproductive Choice Act into law, codifying the "constitutional right to freedom of reproductive choice” in the state.
“With Roe v. Wade under attack, today’s historic legislation makes clear that New Jersey’s position in supporting the right to reproductive choice remains protected,” Murphy said after signing the bill. “Together, with expanding contraception coverage, these two pieces of legislation serve to meaningfully and tangibly increase access to reproductive health care, and ensure that New Jersey residents are now, and will remain, in control of their reproductive choices.”