The Supreme Court Might Overturn Roe v. Wade—But Justices Won't Have the Final Say on Abortion Laws, Expert Says

With more than 200 members of Congress calling on the Supreme Court to consider overturning Roe v. Wade, abortion rights groups across the country are bracing for the possibility that 2020 could be the year the ruling that established the right to abortion in the U.S. is rescinded.

Last week, dozens of Republican lawmakers, joined by two Democratic representatives, signed an amicus brief asking the Supreme Court to consider overturning the 1973 decision, which has protected the right to abortion in the U.S. in the decades since.

In an interview with Newsweek, Andrea Miller, the president of the National Institute for Reproductive Health (NIRH), said there was a real possibility the ruling could be rescinded. However, she said, even if the Supreme Court does follow through with overturning Roe, it does not mean the battle is lost for abortion rights advocates.

"The Supreme Court matters. It matters a lot," Miller said. "But, it does not have the ultimate last word." At the end, she said, that power will lie with states, which, in a world without Roe, would have more power to "do harm" or to "do good."

'Look to the states'

"No matter what the Supreme Court does, it's important to look to the states," Miller said.

Over the past year, states across the country have been racing to introduce new legislation to either strengthen or weaken their abortion laws in anticipation of the possibility that Roe could be overturned by the Supreme Court.

The rush, of course, was prompted by the nomination and subsequent confirmation of now-Justice Brett Kavanaugh to the Supreme Court.

With anti-abortion state lawmakers confident that Kavanaugh would take an anti-abortion status and buoyed by the fact that, with his confirmation, the Supreme Court would have a conservative majority, many rushed to introduce stringent new laws, with some banning abortion almost entirely.

"It's really important for people to understand the number of attacks that have happened over the past year and in recent years," Miller said. However, she said, while 2019 did see a surge of anti-abortion laws signed across the country, it also saw "unmistakable momentum" for pro-abortion advocates.

That trend is revealed in a new study released on Monday by the NIRH, entitled "Gaining Ground."

While the study notes that 2019 saw "unprecedented efforts by state governments to restrict or eliminate access to abortion," it also pointed out that 49 states and D.C. had enacted "a record 147 bills to protect and expand reproductive freedom in 2019."


A 'patchwork' of access

Efforts to promote access to abortion in 2019, the study said, had surpassed "each of the previous five years."

In Illinois, New York, Rhode Island and Vermont, for example, state leaders "enacted laws that codify a fundamental right to make reproductive health care decisions, including the decision to have an abortion," the report states. Meanwhile, "Nevada decriminalized self-managed abortion so that women do not risk prosecution for ending a pregnancy."

Four other states, it noted, also enacted laws seeking to advance access to abortion, with California, for example, requiring public universities to offer medication abortion at on-campus student health centers. In the same year, New Jersey launched its confidentiality program, which allows patients and providers to request that their addresses be kept confidential.

Ultimately, Miller said, even with Roe in place, "it's important to remember that, for a number of years, we already lived under a real patchwork of abortion access."

"So, we already have people in many places for whom abortion access is completely difficult, if not completely out of reach."

Without the protections provided under Roe, Miller said, states would have more power to decide whether abortions should be accessible within their borders.

Protesters on both sides of the abortion issue gather in front of the U.S. Supreme Court building during the Right To Life March, on January 18, 2019 in Washington, D.C. Dozens of lawmakers, including two Democrats, have asked the Supreme Court to consider overturning its Roe v. Wade ruling, which established the right to an abortion in the U.S. Mark Wilson/Getty

Those who make it difficult, or impossible, to access, she said, will have to contend with voters who do not support the legislation, while those in need of abortion care will need to seek it elsewhere, perhaps in neighboring states that have already adopted or will adopt pro-abortion policies.

"We have tremendous opportunity at the state level," Miller said, noting that the number of "affirmative laws" addressing access to abortion and other aspects of reproductive health introduced in 2019 suggested "that we have a powerful counter-movement."

"I anticipate that that momentum will continue," she said.

"Some states can continue their race to the bottom. But, right now, yesterday, today and tomorrow states should be stepping up," Miller said. "The Supreme Court does not get to have the last word on abortion access."