Supreme Court's Roe v. Wade Case Has Three Potential Outcomes

The U.S Supreme Court will hear oral arguments on Wednesday in a major challenge to the right to abortion established by Roe v. Wade in 1973.

In Dobbs v. Jackson Women's Health Organization, the nine justices are tasked with assessing the constitutionality of Mississippi's near-total ban on abortions after the 15th week of pregnancy.

The court is being asked to consider Roe and the 1992 ruling in Planned Parenthood v. Casey, which affirmed Roe, and the majority could decide to overturn longstanding precedent on abortion.

There appear to be three possible routes the court can take in Dobbs: overturning Roe, affirming Roe or recognizing a constitutional right to abortion while allowing for more stringent restrictions in the early stages of pregnancy.

Although the court now has a 6-3 conservative majority, much will depend on the justices' willingness to challenge precedent.

Some of the recently appointed conservative justices, such as Brett Kavanaugh and Amy Coney Barrett, may seek to reach a compromise that doesn't overturn Roe in its entirety.

Here are three possible outcomes of Dobbs.

Roe v. Wade Is Overturned

If a majority of the Supreme Court is convinced that the 1973 landmark case was wrongly decided, they will overturn that decision and open the door to states banning abortion.

In Roe, the court found by a vote of 7 to 2 that there was a constitutional right to abortion and that, in the first trimester, any decision about an abortion should be left to the pregnant woman and her doctor.

States could impose reasonable restrictions in the second trimester related to women's health and in the third trimester—after the point of fetal viability—states could ban abortions except where they were necessary to preserve the woman's life.

In Casey, the court moved away from the trimester approach but maintained the viability standard, setting it at around 23 weeks and deciding that regulations on abortion should be judged on whether they impose an "undue burden" on women seeking the procedure.

The issues of undue burden and viability are crucial in Dobbs. As the Mississippi ban applies before viability, Roe and Casey appear to preclude its constitutionality.

Overturning Roe would not make abortion illegal at the federal level, but would allow states to ban the procedure.

If the court overturns Roe and Casey, the procedure will be banned in large parts of the country, with 18 states already having laws that would immediately ban abortion. By contrast, 13 states and the District of Columbia have laws protecting abortion rights.

Roe v. Wade Is Affirmed

If a majority of the justices decide not to overrule precedent, Roe and Casey will be affirmed and Mississippi's 15-week ban will be struck down.

This does not necessarily mean that the six-week abortion ban in Texas will also fall. That law is before the court in a separate case and the six-week law's novel enforcement mechanism has complicated the issue, with critics saying it was designed to evade the scrutiny of the courts.

At least two of the Supreme Court's conservative justices will have to side with precedent if Roe and Casey is to be affirmed, in what will be a disappointment for many anti-abortion campaigners.

The Court Allows New Restrictions in Early Pregnancy

There is a third possible outcome. A majority of the justices could decide there is a constitutional right to abortion but allow more restrictions in the early stages of pregnancy.

Mississippi is asking the court to judge its 15-week ban based on the undue burden standard. Essentially, the state wants the court to decide that its ban does not impose an undue burden. The Supreme Court has never before judged pre-viability restrictions on abortion using that standard.

The justices agreed to decide whether "all pre-viability prohibitions on elective abortion are unconstitutional" when they took up the case in May last year.

If the majority agrees to use the undue burden standard and finds Mississippi's law constitutional, it is likely to lead to new state-level restrictions based on the stage of gestation. That would make it more difficult to access abortion for many people.

Update 12/1/21 11.03a.m. E.T.: This article was updated to include a new picture.

Demonstrators Gather Outside the Supreme Court
Abortion rights advocates and anti-abortion protesters demonstrate in front of the US Supreme Court in Washington, DC, on December 1, 2021. The Court is hearing a major abortion case on Wednesday. OLIVIER DOULIERY/AFP/Getty Images

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