History of Roe v. Wade Part III

 

Judge Edith Jones

In 2002, along with Sandra Cano (Mary Doe) from Doe v. Bolton and Bernard Nathanson, a co-founder of NARAL Pro-Choice America, McCorvey appeared in a television advertisement intended to get the Bush administration to nominate members to the Supreme Court who would oppose abortion.

As a party to the original litigation, she sought to reopen the case in U.S. District Court in Texas to have Roe v. Wade overturned. However, the Fifth Circuit decided that her case was moot, in McCorvey v. Hill. In a concurring opinion, Judge Edith Jones agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development. However, Jones said she was compelled to agree that the case was moot. On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, and McCorvey's appeal ended.

In an interview shortly before her death, McCorvey stated that she had taken an anti-abortion position because she had been paid to do so and that her campaign against abortion had been an act. She also stated that it did not matter to her if women wanted to have an abortion and they should be free to choose. Rob Schenck, a Methodist pastor and activist who once had anti-abortion views stated that he and others helped entice McCorvey to claim she changed sides and also stated that what they had done with her was "highly unethical" and he had "profound regret" over the matter.

Frank Pavone, a priest with whom McCorvey talked to after the interview, reflected after her death that "There was no indication whatsoever, at the end of her life" that she had given up her pro-life positions. Pavone stated that following the interview, McCorvey talked positively with him about a message she wanted him to convey at the next March for Life. The message concerned encouraging young people to oppose abortion.

McCorvey's third child

In 2021, Shelley Thornton, McCorvey's third child, who was not aborted as a fetus because the court proceedings took too long, stated she was neither pro-life nor pro-choice. She grew up not knowing that she was the fetus in the Roe case until her birth mother appeared on the Today show in 1989 and talked about her desire to meet her daughter. In response, a journalist for the National Enquirer found Thornton as a teenager and told her about her prenatal history. This made her very sad. In 1991, Thornton became pregnant and did not have an abortion because abortion was "not part of who I was". By 2021, she had met her two half-siblings, but not her birth mother. She nearly met her birth mother in 1994, but on the phone McCorvey told her that she should have thanked her for not having an abortion. Thornton's visceral reaction was "What! I'm supposed to thank you for getting knocked up ... and then giving me away?" She told her birth mother that she "would never, ever thank her for not aborting me". She reflected that "When someone's pregnant with a baby, and they don't want that baby, that person develops knowing they're not wanted."

Sarah Weddington

After arguing in Roe v. Wade at the age of 26, Sarah Weddington was elected to the Texas House of Representatives for three terms. Weddington also was general counsel for the U.S. Department of Agriculture, an assistant to President Jimmy Carter, lecturer at the Texas Wesleyan University School of Law, and speaker and adjunct professor at the University of Texas at Austin.

In a 1993 speech for the Institute for Educational Ethics in Oklahoma, Weddington discussed her conduct during Roe and stated, "My conduct may not have been totally ethical. But I did it for what I thought were good reasons."

In 1998, she said that the lack of doctors to abort fetuses could undermine Roe: "When I look back on the decision, I thought these words had been written in granite. But I've learned it was not granite. It was more like sandstone. The immediate problem is, where will the doctors come from?" Weddington died on December 26, 2021.

Subsequent judicial developments

Roe is embedded in a long line of cases concerning personal liberty in the realm of privacy, since Roe was based on individual liberty cases concerning privacy like Meyer v. Nebraska (1923), Griswold v. Connecticut (1965), Loving v. Virginia (1967) and Eisenstadt v. Baird (1972) and became a foundation for individual liberty cases concerning privacy like Lawrence v. Texas (2003) and Obergefell v. Hodges (2015).

Two months after the decision in Roe, the Court issued a ruling about school funding in San Antonio Independent School District v. Rodriguez. The majority opinion cited Roe v. Wade to assert that privacy itself was a fundamental right, while procreation implicitly counted as "among the rights of personal privacy protected under the Constitution." In his dissenting opinion, Justice Thurgood Marshall stated that Roe v. Wade "reaffirmed its initial decision in Buck v. Bell", and noted where Buck was cited in Roe. He found Roe to be a continuation of the Court's practice of granting only a limited stature to the right to procreate, since the Court's decision treated procreation as less important than the right to privacy. He observed that although past decisions showed strong concern against the state discriminating against certain groups concerning procreation and certain other rights, the "Court has never said or indicated that these are interests which independently enjoy full-blown constitutional protection." Instead, in Roe, "the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacy ..." Justice Marshall thought that the method used in Rodriguez for determining which rights were more fundamental was wrong, and proposed a different method which would result in procreation receiving greater legal protection.

The legal interaction between Roe v Wade, the Fourteenth Amendment as understood post-Roe, and changing medical technology and standards caused the development of civil suits for wrongful birth and wrongful life claims. Not all states permit a parent to sue for wrongful birth or a child to sue for wrongful life. The constitutionality of wrongful life claims is controversial within the legal profession, even for states which currently allow them. Pre-Roe, a state court dismissed a lawsuit making both a wrongful birth and life claim, which was unsuccessfully appealed to the Supreme Court of New Jersey.

Prior to Roe, the Chancery Division of the Superior Court of New Jersey found that a pregnant Jehovah's Witness woman could be ordered to submit to lifesaving blood transfusions due to the state's compelling interest "to save her life and the life of her unborn child." The Court appointed a legal guardian to represent the unborn child, and ordered the guardian to consent to blood transfusions and to "seek such other relief as may be necessary to preserve the lives of the mother and the child". After Roe, the Fifth District Appellate Court in Illinois ruled that medical professionals had wrongly transfused blood into a pregnant Jehovah's Witness woman on the basis from Roe that the "state's important and legitimate interest becomes compelling at viability" and her fetus was not yet viable.

President Reagan, who supported legislative restrictions on abortion, began making federal judicial appointments in 1981. Reagan denied that there was any litmus test: "I have never given a litmus test to anyone that I have appointed to the bench ... . I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating."

In addition to Justices White and Rehnquist, Reagan-appointee Justice Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the Roe Court was "unworkable." Shortly before his retirement, Chief Justice Warren Burger suggested in 1986 that Roe be "reexamined"; the associate justice who filled Burger's place on the Court—Justice Antonin Scalia—vigorously opposed Roe. Concern about overturning Roe played a major role in the defeat of Robert Bork's nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Justice Lewis Powell was Justice Anthony Kennedy.

The justices voting in the majority on the Federal Constitutional Court in pre-unification West Germany rejected the trimester framework in the German Constitutional Court abortion decision, 1975 on the basis that development during pregnancy is a continuous whole rather than made up of three trimesters. The Court found that the right to life extends also to the unborn and that life begins on the fourteenth day after conception. It also found that the liberties of pregnant mothers were qualified by the existence of another life inside them. The Court found that "A compromise which guarantees the protection of the life of the one about to be born and permits the pregnant woman the freedom of abortion is not possible since the interruption of pregnancy always means the destruction of the unborn life." It ruled that the fetus must be protected, and the first responsibility for this lies with the mother, with a second responsibility in the hands of the legislature. The Court allowed for a balancing of rights between the mother and unborn child, but required that the rights of each be considered within a framework which acknowledged the supreme, fundamental value of human life. Legislation allowing abortion could be constitutional if the rights of the unborn persons were acknowledged in this manner.

Two minority justices in the ruling for the German Constitutional Court abortion decision in 1975 remarked that "the Supreme Court of the United States has even regarded punishment for the interruption of pregnancy, performed by a physician with the consent of the pregnant woman in the first third of pregnancy, as a violation of fundamental rights. This would, according to German constitutional law, go too far indeed."

In 1988, the Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada's federal law limiting abortions to certified hospitals unconstitutional in R. v. Morgentaler.

Planned Parenthood v. Danforth

In Planned Parenthood v. Danforth, 428 U.S. 52 (1976), the plaintiffs challenged a Missouri statute which regulated abortion. In the regulations for abortions on demand, the state required prior written consent from a parent if the patient was a minor or a spouse if the patient was married. For pregnancies at 12 weeks and later, the statute also banned saline abortions, in which chemicals are injected into the amniotic sac to burn the fetus. The portions of the statute involving parental or spousal consent and prohibiting saline abortions were struck down.

Floyd v. Anders

In Floyd v. Anders, 440 F. Supp. 535 (D.S.C. 1977), South Carolina attempted to prosecute a doctor for illegal abortion and murder after he attempted to abort an African American boy at 25 weeks. During the abortion, the boy was born alive and survived for 20 days before dying. His prosecution was blocked by Judge Clement Haynsworth, and shortly afterwards by a unanimous three judge panel for the U.S. District Court for the District of South Carolina. Judge Haynsworth, writing for the panel, stated "Indeed, the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment." John T. Noonan criticized this from an anti-abortion perspective, stating that "Judge Haynsworth had replaced the Supreme Court's test of potential ability to live with a new test of actual ability to live indefinitely. He also had spelled out what was implied in Roe v. Wade but never actually stated there. For the American legal systems the fetus in the womb was not alive." The standard in Roe for viability outside the womb required a "capability of meaningful life". Without this capability, the state had no compelling "important and legitimate interest in potential life".

Webster v. Reproductive Health Services

In a 5–4 decision in 1989's Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution." In particular, the Court found that the ability to have a non-therapeutic abortion was not an affirmative right of the sort that required the state to pay for it. In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.

In concurring opinions, Justice O'Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and Justice O'Connor for not overruling Roe. Justice Blackmun stated in his dissent that Justices White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their plurality opinion "foments disregard for the law." White had recently opined that the majority reasoning in Roe v. Wade was "warped."

Planned Parenthood v. Casey

During initial deliberations for Planned Parenthood v. Casey (1992), an initial majority of five justices (Rehnquist, White, Scalia, Kennedy, and Thomas) were willing to effectively overturn Roe. Justice Kennedy changed his mind after the initial conference, and Justices O'Connor, Kennedy, and Souter joined Justices Blackmun and Stevens to reaffirm the central holding of Roe, but instead of justifying the liberty to abort as being based on privacy as in Roe, it justified the liberty in a broader manner. The opinion asserted an individual's liberty to choose concerning family life and also protection from legal enforcement intended to maintain traditional sex roles, writing, "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ..." and against the state insisting "upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."

The plurality of justices stated that abortion-related legislation should be reviewed based on the undue burden standard instead of the strict scrutiny standard from Roe.

The plurality also found that a fetus was now viable at 23 or 24 weeks rather than at the 28 week line from 1973. They also felt that fetal viability was "more workable" than the trimester framework. They abandoned the trimester framework due to two basic flaws: "in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe." Only Justice Blackmun wanted to retain Roe entirely and issue a decision completely in favor of Planned Parenthood. Prior to this, he had considered a Pennsylvania viability-based law to be unconstitutionally vague in his majority opinion for Colautti v. Franklin.

Justice Scalia's dissent asserted that abortion is not a liberty protected by the Constitution for the same reason bigamy was not protected either: because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. He also asked:

Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.

Stenberg v. Carhart

During the 1990s, Nebraska enacted a law banning partial-birth abortion. The law allowed another second-trimester abortion procedure known as dilation and evacuation. In 2000, the Supreme Court struck down the law by a 5–4 vote in Stenberg v. Carhart, with Justice Stephen Breyer writing for the majority that sometimes partial-birth abortion "would be the safest procedure". Justice O'Connor wrote a concurrence stating Nebraska was actually banning both abortion methods. Justices Ginsburg and Stevens joined each other's concurrences. Justice Stevens stated that "the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other ... is simply irrational." Justice Ginsburg stated that the "law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."

Justice Thomas's dissent stated, "The 'partial birth' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body." Justice Scalia joined Justice Thomas's dissent and also wrote his own, stating that partial-birth abortion is "so horrible that the most clinical description of it evokes a shudder of revulsion" and that this case proved Casey was "unworkable". Chief Justice Rehnquist joined the two dissents by Justices Scalia and Thomas.

Justice Kennedy, who had co-authored Casey, dissented in Stenberg. He described in graphic detail exactly how a fetus dies while being dismembered during a dilation and evacuation procedure. He reasoned that since Nebraska was not seeking to prohibit it, the state was free to ban partial-birth abortion.

Gonzales v. Carhart

In 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart. The Court previously ruled in Stenberg v. Carhart that a state's ban on partial-birth abortion was unconstitutional because such a ban did not have an exception for the health of the woman. The membership of the Court changed after Stenberg, with Chief Justice John Roberts and Justice Samuel Alito replacing Chief Justice Rehnquist and Justice O'Connor. The ban at issue in Gonzales v. Carhart was similar to the one in Stenberg, but had been adjusted to comply with the Court's ruling.

On April 18, 2007, a 5 to 4 decision upheld the constitutionality of the Partial-Birth Abortion Ban Act. Justice Kennedy wrote the majority opinion that Congress was within its power to ban partial-birth abortion. The Court left the door open for as-applied challenges. The opinion did not address whether Casey remained valid. Instead it only assumed Casey was valid "for the purposes of this opinion".

Chief Justice John Roberts and Justices Scalia, Thomas, and Alito joined the majority. Justice Thomas filed a concurring opinion, joined by Justice Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed. They also noted that the Partial-Birth Abortion Ban Act may have exceeded the powers of Congress under the Commerce Clause but that the question was not raised.

Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, dissented, contending that the ruling ignored precedent and that abortion rights should instead be justified by equality.

Dubay v. Wells

Dubay v. Wells was a 2006 paternity case where a man argued he should not have to pay child support for a child he did not want to parent. The case was billed as "Roe v. Wade for men".

On March 9, 2006, Dubay filed a lawsuit before the United States District Court for the Eastern District of Michigan. Michigan's Attorney General, Joel D. McGormley, made a motion to have the case dismissed. On July 17, 2006, District Court Judge David Lawson agreed and dismissed Dubay's lawsuit. He appealed it once, to the United States Court of Appeals for the Sixth Circuit, which also dismissed it, and stated:

Dubay's claim that a man's right to disclaim fatherhood would be analogous to a woman's right to abortion rests upon a false analogy. In the case of a father seeking to opt out of fatherhood and thereby avoid child support obligations, the child is already in existence and the state therefore has an important interest in providing for his or her support.

Whole Woman's Health v. Hellerstedt

In 2013, the Texas legislature enacted restrictions which required abortion doctors to have admitting privileges at a local hospital and required abortion clinics to have facilities equivalent to others which conducted outpatient surgery. On June 27, 2016, the Supreme Court in a 5–3 decision for Whole Woman's Health v. Hellerstedt struck down these restrictions.

The majority opinion by Justice Breyer struck down these two provisions of Texas law in a facial manner—that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. The ruling also stated that the task of judging whether a law puts an undue burden on a woman's right to abortion belongs with the courts and not the legislatures.

Box v. Planned Parenthood

In 2016, Indiana passed House Bill 1337, enacting a law which regulated what is done with fetal remains and banning abortion for sexist, racist, or ableist purposes. In its unsigned 2019 ruling for Box v. Planned Parenthood of Indiana and Kentucky, Inc., the U.S. Supreme Court upheld the regulations about fetal remains, but declined to hear the remainder of the law, which had been blocked by lower courts. Justice Ginsburg dissented from the part of the ruling about fetal remains on the basis that the regulations violated Casey. She also criticized Justice Thomas over his use of the word "mother" in his concurrance.

Justice Sotomayor stated that she wished the Court would not have heard the case at all. Justice Thomas wrote a concurring opinion which expressed concern that the theory presented in Freakonomics echoed the views of the eugenics movement. He warned that "a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement". He predicted, "Although the Court declines to wade into these issues today, we cannot avoid them forever."

Whole Woman's Health v. Jackson

In 2021, the state of Texas devised a legal workaround to Roe that allowed it to successfully outlaw abortion at six weeks of pregnancy despite the continued existence of Roe and Casey. In the Texas Heartbeat Act, the legislature created a novel enforcement mechanism that bars state officials from enforcing the statute and authorizes private individuals to sue anyone who performs or assists an illegal abortion. Because the Texas Heartbeat Act is enforced by private citizens rather than government officials, there are no state officials that abortion providers can sue to stop the enforcement of the law, and they cannot obtain judicial relief that will stop private lawsuits from being initiated against them. This has produced an end-run around Roe because the threat of private civil-enforcement lawsuits has forced abortion providers to comply with the Texas Heartbeat Act despite its incompatibility with the Supreme Court's abortion pronouncements. Other states have copied this enforcement mechanism to sidestep Roe and immunize their anti-abortion statutes from judicial review. This maneuver has weakened Roe and undercut the federal judiciary’s ability to protect abortion rights from state legislation.

Dobbs v. Jackson Women's Health Organization

Dobbs v. Jackson Women's Health Organization is a case that was a legal challenge to Mississippi's 2018 Gestational Age Act, which had banned abortions after 15 weeks with exceptions only for medical emergencies or fetal abnormalities. Federal courts had enjoined the state from enforcing the law after the state's only abortion clinic, Jackson Women's Health Organization, filed suit immediately after passage; the federal courts stated that the law violated the previously established 24-week point of viability. Mississippi asked the Supreme Court to hear the case on June 15, 2020, and the Court certified the petition on May 17, 2021, limited to the question of "Whether all pre-viability prohibitions on elective abortions are unconstitutional". The Court chose not to take up two other questions that Mississippi wanted to bring before the Court.

On May 2, 2022, Politico released a leaked first draft of a majority opinion written by Justice Alito, which had been circulated among the court in February 2022. Alito's draft called the Roe decision "egregiously wrong from the start" and would allow states to decide on abortion restrictions, overturning Roe and Casey. The release of a draft opinion for a pending case is unprecedented in recent Supreme Court history. The document was not a final decision, and justices are able to change their votes. The document is thought to reflect both the justices' preliminary voting and the outcome of the internal Court procedure for deciding who is assigned to write the majority opinion. A press release from the Supreme Court confirmed the leaked document's authenticity, and Chief Justice Roberts in a statement described its release as a "betrayal of the confidences of the Court".

On June 24, 2022, the Supreme Court ruled 6–3 to uphold Mississippi's Gestational Age Act and 5–4 to overrule Roe and Casey. Similar to the leaked draft opinion, the opinion of the court written by Justice Alito stated that Roe was "egregiously wrong from the start" and its reasoning "exceptionally weak". It also stated that Roe has "enflamed debate and deepened division" and that overruling it would "return the issue of abortion to the people’s elected representatives".

Role in politics

Presidential positions

Generally, presidential opinions following Roe have been split along major party lines. The decision was opposed by Presidents Gerald Ford, Ronald Reagan, George W. Bush, and Donald Trump. President George H. W. Bush also opposed Roe, though he had supported abortion rights earlier in his career.

President Richard Nixon appointed Justices Burger, Blackmun, and Powell who voted with the majority, and Justice Rehnquist who dissented. President Nixon did not publicly comment about Roe v. Wade.

During his early career, President Jimmy Carter supported legalizing abortion in order to save the life of a woman or in the event of birth defects, or in other extreme circumstances. As president, he thought abortion was wrong, but stated that he "accepted my obligation to enforce the Roe v. Wade Supreme Court ruling, and at the same time attempted in every way possible to minimize the number of abortions." In 2012 he reflected, "I never have believed that Jesus Christ would approve of abortions and that was one of the problems I had when I was president having to uphold Roe v. Wade ..." He urged the Democratic Party to take a position supporting pregnant mothers to minimize economic and social factors driving women to get abortions. He also wanted the party to take stand in favor of banning abortion except for those whose lives "are in danger or who are pregnant as a result of rape or incest."

Roe was supported by Presidents Bill Clinton and Barack Obama. In 1981, then-Senator Joe Biden voted for a constitutional amendment allowing states to overturn Roe v. Wade, which he voted against the following year. In a 2007 memoir, Biden expressed an opinion that although he was "personally opposed to abortion" he did not have the "right to impose" his personal opposition onto others. In 2021, he described himself to reporters as "a strong supporter of Roe v. Wade", and added, "And I under— I respect people who think that—who don't support Roe v. Wade; I respect their views. I respect them—they—those who believe life begins at the moment of conception and all. I respect that. Don't agree, but I respect that. I'm not going to impose that on people."

Federal bills or laws regarding Roe

Federal bills, amendments, or laws regarding Roe include the Women's Health Protection Act, Freedom of Choice Act, Partial-Birth Abortion Ban Act, Born-Alive Infants Protection Act, Unborn Victims of Violence Act, Interstate Abortion Bill, No Taxpayer Funding for Abortion Act, Pain-Capable Unborn Child Protection Act, Partial-Birth Abortion Ban Act of 1995, Sanctity of Human Life Act, Sanctity of Life Act, Hyde Amendment, Freedom of Access to Clinic Entrances Act, and the Baby Doe Law.

Following the passage of the Texas Heartbeat Act and the Supreme Court's acceptance of the Dobbs v. Jackson Women's Health Organization case, and the threat the case poses to Roe in the eyes of Roe supporters, Neal Kumar Katyal, a law professor and former acting solicitor general of the United States, said that instead of abortion regulation by the judicial branch, Congress could "codify the rights two generations have taken as part of American life", and "nullify the threat to reproductive health posed by the Mississippi case." Thomas Jipping of the Heritage Foundation wrote that the Women's Health Protection Act is unconstitutional because it regulates how state legislatures regulate abortion and abortion services rather than directly regulating abortion at the federal level. Views that the WHPA is unconstitutional or should otherwise be opposed were expressed during Senate Judiciary Committee hearings in 2014.

State laws regarding Roe

At the state level there have been many laws about abortion. In the decade after Roe, most states passed laws protecting medical workers with a conscientious objection to abortion. Nine states which had legalized abortion or loosened abortion restrictions prior to Roe already had statutory protection for those who did not want to participate in or perform an abortion. As of 2011, forty-seven states and the District of Columbia had laws allowing certain people to decline to perform certain actions or provide information related to abortion or reproductive health. At the federal level, the Church Amendment of 1973 was proposed in order to protect private hospitals objecting to abortion from being deprived of funding. It first passed the Senate, 92-1, then a slightly modified version passed the House 372-1, and the final bill which contained it passed the Senate 94-0. Justice Blackmun supported this and other regulations protecting individual physicians and entire hospitals operated by religious denominations.

Some states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada, and Washington. Other states have enacted so-called trigger laws that would take effect in the event that Roe v. Wade is overturned, with the effect of outlawing abortions on the state level. Those states include Arkansas, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota. Additionally, many states did not repeal pre-1973 statutes against abortion, and some of those statutes could again be in force if Roe were reversed.

On April 16, 2012, Mississippi House Bill 1390 was signed into law. The law attempted to make abortion unfeasible without having to overturn Roe v. Wade. Judge Daniel Porter Jordan III of the United States District Court for the Southern District of Mississippi granted an injunction against the law on July 13, 2012. On April 15, 2013, he issued another injunction which only applied to a part of the law which required the individual performing the abortions to have hospital admitting privileges. On July 29, 2014, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit upheld the injunction against part of the law, with Judge Emilio M. Garza dissenting. The ruling especially relied on a case unrelated to Roe which was decided "nearly fifty years before the right to an abortion was found in the penumbras of the Constitution". On February 18, 2015, Mississippi asked the Supreme Court to hear the case, but they declined to hear it on June 28, 2016.

The Human Life Protection Act was signed by Alabama governor Kay Ivey on May 14, 2019 in hopes of challenging Roe v. Wade in the Supreme Court. It includes exceptions for a serious health risk to the mother or a lethal fetal anomaly, but otherwise it will make abortion a felony for the abortion doctor if it goes into effect. Women subjected to an abortion will not be criminally culpable or civilly liable under the law. On October 29, 2019, Judge Myron Thompson for the U.S. District Court for the Northern District of Alabama issued a preliminary injunction against the law.

In May 2021, Texas lawmakers passed Senate Bill 8, creating the Texas Heartbeat Act, banning abortions except in cases of medical emergency as soon as a fetal heartbeat can be detected. This is typically as early as six weeks into pregnancy and often before women know they are pregnant. The law established that any Texas resident who is not a state or local government employee or official can sue abortion clinics and doctors who are known to be "aiding and abetting" abortion procedures after six weeks. A clause forbids anyone who impregnated an abortion patient through rape, sexual assault, or incest to sue concerning the patient. The enactment date was September 1, 2021, and the U.S. Supreme Court, in a 5–4 decision, declined a request to block enforcement of the law that day. On October 22, 2021, the Court again did not block the law's enforcement, and agreed to hear arguments for United States v. Texas (2021) later, on November 1, 2021. They limited the question to a review of standing. On December 10, 2021, the Court dismissed the lawsuit on the basis that lower courts should not have accepted it. This decision allows lawsuits against the executive directors of Texas's medical, nursing, and pharmacy licensing boards and also against the executive commissioner of the Texas Health and Human Services Commission, but not certain other lawsuits seeking to overturn the law.

Demographic effects and opinion polls

Roe v. Wade caused a 4.5% decline in births in states that had not previously legalized abortion. According to a 2019 study, if Roe v. Wade is reversed and some states prohibit abortion on demand, the increases in travel distance are estimated to prevent at a low estimate of over 90,000 women and at a high estimate of over 140,000 women from having abortions in the year following the ruling's overturning. If Roe were to be overturned by a constitutional amendment which would apply to all the states, fertility could be expected to increase by 11% because then mothers would not travel to states where abortion is legal.

Although the legalization of abortion in the United States increased the labor supply of fertile-aged women in the workforce, it decreased the labor supply of older women. This is thought to be due to the fact they now had fewer opportunities to financially support grandchildren. Older women whose labors became less necessary for the family's financial wellbeing either left or stayed out of the workforce.

The Donohue–Levitt hypothesis about the legalized abortion and crime effect proposed that legalized abortion was responsible for reductions in the crime rate. If there is a relationship between abortion and crime, there are several possibilities which could explain how abortion lowers crime. One possibility is that crime is disproportionally committed by young males, and legalizing abortion reduced the number of young males. Another possibility is that children born in the post-legalization era are less likely to commit crimes. If this is the case, it might be explained in two ways. One way is that the sort of women who have abortions are not representative of pregnant women as a whole; rather they are the sort who are most likely to give birth to children who grow up to be criminals. In this way, abortion serves to shape American family structure. Studies linking demographics to crime have found that children born to American teenagers, unmarried mothers, and mothers with lower incomes are more likely to engage in criminal activity as adolescents. Abortion rates are higher for these demographics. A second possible way to explain it is that women use abortion to prevent births until they are most able to provide a stable home environment. Factors involved in stability include the age, education, income, of the mother, her use of drugs and alcohol, the presence of a father, and wanted as opposed to unwanted pregnancies.

Polls of Americans' opinions about abortion indicate they are about equally divided. Organizations including Gallup, Pew, and Harris conduct abortion or Roe v. Wade related polls. Regarding the Roe decision as a whole, more Americans support it than support overturning it. When pollsters describe various regulations that Roe prevents legislatures from enacting, support for Roe drops. Poll results relating to abortion indicate nuance and frequently do not directly match up with respondents' self-identified political affiliations.

The Roe effect is a hypothesis explaining why the practice of abortion will eventually lead to abortion being restricted or outlawed. The hypothesis is that people in favor of abortion rights will not parent as many children when abortion is legal, and since children tend to have similar views to their parents eventually voters will not support abortion rights. In 2021, the ABC News/Washington Post poll found that 58% of those with children living at home wanted to see Roe v. Wade upheld, compared to 62% of those without children at home. The All In Together poll found that only 36% with children living in their house opposed the Texas Heartbeat Act, compared to 54.9% without children.