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What’s the future of abortion law?

As the Supreme Court rethinks Roe v. Wade, activists prepare for the fallout

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Michelle Budge, Deseret News

Editor’s note: This story was originally published on March 28, 2022. On June 24, the U.S. Supreme Court overturned Roe vs. Wade and other decades-old legal precedents on abortion.

Nearly 50 years after the United States Supreme Court ruled that restrictions on abortion were unconstitutional, the court could be on the verge of reversing that stance.

Sometime this summer, the court is expected to rule on Dobbs v. Jackson Women’s Health Organization, a 2018 challenge to a Mississippi law that banned most abortions after 15 weeks of gestation. The outcome could effectively— end the efficacy of Roe v. Wade, the landmark 1973 decision that once seemed to change the legality of reproductive rights forever.

The Dobbs ruling has the potential to transform abortion access for women across the country. While there are pathways for a limited ruling, a full reversal of Roe would revert to states the authority to decide their own laws governing the procedure, which medically terminates a pregnancy before the fetus is viable. That seems more likely considering the court’s 6-3 conservative majority.

“There’s excitement in the air,” says Sue Swayze Liebel, state policy director at Susan B. Anthony List, an anti-abortion political action committee. “A lot of lives will be saved.”

In anticipation of that possible outcome, the Arizona Senate recently passed a ban on abortion after 15 weeks, mirroring the Mississippi law, as did the Florida House. Overall, 26 states are expected to ban the procedure should the court overturn or gut Roe, according to the Guttmacher Institute, a reproductive health research and policy group that supports abortion rights.

In the West, Idaho and Utah are among 12 states with “trigger” bans set to go into effect should the case be overturned, and Arizona is one of eight with a pre-Roe prohibition of abortion that remains on the books and could again become enforceable. California, Oregon and Washington all have laws protecting the procedure.

Activists are also preparing for the impact on women dealing with unwanted pregnancies.

Anti-abortion groups like Susan B. Anthony List are recommending that states expected to ban abortion take stock of social services available to women and families through government agencies, faith organizations and the private sector. It can be a complex map of public and private services, including medical care, job training and parenting classes, and “one of the things that we are looking at is ways to help women navigate all those things,” Liebel says. 

On the other hand, providers in states where abortion is expected to continue are bracing for increased demand, beefing up their capacities, training additional staff and even planning to build new clinics. Groups are working together, building stronger relationships to pool resources and provide complimentary services, especially in communities near conservative state borders, like Spokane, Washington.

Cutting access to abortions for millions of Americans will increase the stress on reproductive health structures that are already inundated, says Iris Alatorre, a program manager for the Northwest Abortion Access Fund. The fund works in Washington, Idaho and Alaska. More than half of the calls to its hotline already come from Idaho, which has the most restrictive laws in the fund’s coverage area and few providers. 

The number of abortions in the U.S. is on the decline. Between 2011 and 2017, abortions fell 19%, according to the Guttmacher Institute, including in states that didn’t pass abortion restrictions. Among the likely contributing factors to this drop, the organization listed lower pregnancy rates due to increased contraceptive use, a decline in sexual activity among young people and rising infertility.

It’s unclear what might come next for the anti-abortion movement if Roe is overturned. In 1973, that decision energized the movement. Cardinal John Krol, president of the U.S. Conference of Catholic Bishops at the time, called it “an unspeakable tragedy.” The first March for Life was organized in January 1974, one year later. Abortion galvanized social conservatives and has since become one of the defining social issues for the political right. A Dobbs decision could be the most significant ruling on abortion in half a century, but it wouldn’t end the debate as long as the practice continues.

Nationally, Americans lean toward allowing abortions, with a 2021 Pew poll finding 59% believe abortion should be legal in all or most cases. A similar percentage told Gallup last year that they do not want Roe overturned. An even higher 83% believe abortion should be legal if the life of the mother is in danger, while 77% believe it should be legal in cases of rape or incest and 60% believe it should be legal during the first three months of pregnancy. And while abortion sharply divides the two major political parties, more than a third of Republicans support it. Nearly a fifth of Democrats do not. 

Some expect the issue to become even more divisive, and activists say the fight will continue.

“Everybody says it’ll go back to the states’ rights, but I am incredibly skeptical,” says Grayson Dempsey, a consultant at the Lilith Clinic, an abortion provider in Portland, Oregon. “I think that the very next step that they will go after is a nationwide ban on abortion care.” 

Others, however, see a scenario in which the court’s ruling is more focused on the case at hand and doesn’t significantly upend broad precedent. The court under Chief Justice John Roberts has gained a reputation for bringing both conservative and liberal justices into majority opinions on contentious issues by issuing decisions focused on narrow areas of agreement. But whether the court will do the same on what could prove to be the most consequential ruling in a generation remains to be seen. 

This story appears in the April issue of Deseret MagazineLearn more about how to subscribe.