The impacts and implications of overturning Roe v. Wade

The Supreme Court overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) in today’s ruling on Dobbs v. Jackson Women’s Health Organization, ending 50 years of federal constitutional protection for abortion. With the overturning of Roe, the authority to regulate abortion now rests with the states, permitting them to pass laws that restrict or prohibit abortion altogether.

Judith Daar, dean of Northern Kentucky University’s Chase College of Law, spoke with The Northerner about how this decision could impact access to abortion, reproductive technologies and same-sex marriage, as well as what could happen next. The following conversation has been edited for length and clarity.

The Northerner: Addressing the big question first, what do you say are the ramifications of turning Roe v. Wade for abortion access?

Daar: I’m processing this decision in terms of its legal, practical and philosophical impacts. As to the legal impacts, over half of the states in the United States have what are called ‘trigger laws’, or laws that were put in place and were designed to become effective once Roe is overturned. Now that that’s happened, we’re going to see the states activate those laws. Some of those take effect immediately, such as the trigger law in the Commonwealth of Kentucky. Some of them will require some other action on the part of the legislature or the executive [branch]. But most of them will become effective within a month or so of today’s decision.

In terms of practical impacts, we’re already starting to see those as the day goes on. For example, in Kentucky, the two abortion providers in the state, both located in Louisville, have ceased providing care to patients today, just to take a moment to figure out what the decision means and what Kentucky’s immediate trigger law means for the provision of services in the Commonwealth. So practically speaking, other providers across the country will likely join and stop providing services immediately, in a short period of time or perhaps a long period of time, as long as the state laws prohibit it.

Another feature of the practical aspects of the decision is how it will impact access to medical abortion. Medical abortion accounts for over 50 percent of all abortions in the country, and that is through the ingestion of a two-regimen pill pharmaceutical treatment, in which an abortion can occur in a private setting and the patient can have control over that setting. So the question is going to be how the regulations that move forward in this state impact the ability of women to access medication abortion.

As to the philosophical, that’s a deeper question for a long time consideration.

The Northerner: Shortly after the opinion draft leaked, you published an article in the Journal of the American Medical Association about what the implications could mean for reproductive procedures like in-vitro fertilization. Could you go into more detail?

Daar: Yes. Today’s decision does not address in any way, express or even imply the access to in-vitro fertilization and other technologies that are pregnancy inducing, in which patients seek to form their families and need medical assistance. It’s not a huge leap to move from highly restrictive abortion regulations to impacting access to in-vitro fertilization.

For example, laws that restrict abortion from the moment of conception could be interpreted to mean that some of the common techniques surrounding IVF, such as freezing embryos for later cycles or testing embryos through preimplantation genetic biopsy to determine the health of the embryo, it’s possible that these techniques could likewise be restricted or even prohibited under an interpretation of abortion regulation.

The Northerner: There’s some concern that overturning Roe could probably set a precedent for the Supreme Court to allow states to restrict other rights such as same-sex marriage. Do you think this is a possibility?

Daar: I do. What Justice [Clarence] Thomas said in his opinion in the case today signals that possibility. Justice Thomas has long been an opponent of substantive due process and he’s made that clear on prior opinions, but it’s typically been in the dissent. Today it joins as a concurring opinion in the majority, in which he specifically says about previous decisions in Griswold v. Connecticut in 1965, the decision that paves the way for constitutional protection of access to contraception. He mentions also Obergefell, which is a case that finds a constitutional protection for same-sex marriage.

He says it’s time to revisit those decisions because they have no basis in constitutional law. We see today not just a hint but a full-throated advocacy for revisiting opinions in which liberty interests are found to protect these rights, and we should be concerned about whether those will take hold moving forward.

The Northerner: It seems that a lot of the Supreme Court’s decisions are rooted in their interpretation of the Constitution and precedents. Can you speak more about that?

Daar: The concept of stare decisis is an important one in law, and it basically means what is settled should remain. Law has long adhered to this notion and tradition of stare decisis, of adhering to prior precedents. But of course, it’s not absolute, just like constitutional rights are not absolute and are subject to interpretation and modification as the circumstances permit. The majority opinion that Justice [Samuel A.] Alito authors spends a lot of time talking about stare decisis and the circumstances under which an opinion should be overruled. He goes through a five-part analysis in which he says each instance of Roe and Casey v. Planned Parenthood should be overturned based on the factors that help us interpret stare decisis. While it’s a principle that’s very important in law, it’s not an absolute principle, and the court today at great length discusses what they think is the appropriate use of the doctrine in these exceptions, that is to overturn a prior precedent.

The Northerner: There seems to be a conservative majority on the court. Do you believe that they have a more restrictive or literal interpretation of the Constitution?

Daar: That’s an excellent question and I have to say that we can answer that on a case-by-case basis. As to the notion that the court has a conservative majority now, judging that term “conservative” in traditional ways, that does appear to be the case if we think about the decisions about the cases that the court handed down this week alone: cases on the First Amendment, that is religious freedom; the Second Amendment, gun control and gun safety laws; and of course the Fourteenth Amendment, the Due Process Clause and its liberty component in the abortion decision.

A traditional interpretation of a conservative jurisprudence would have predicted the outcome in each of those cases. If so, in a traditional interpretation of that word, we do have a conservative majority on the Supreme Court that appears to be very strong. Only the resignation or the death of one of the justices will change the composition of the court.

The Northerner: What usually happens to court rulings that get overturned like this?

Daar: Once a decision is overturned then it no longer has impact on American law. To the extent that Roe and Casey protected women and allies in their access to abortion, now that that is overturned and there is no federal constitutional protection of access to abortion, it just means that states are free to enact regulations that they think are appropriate for their populations.

The Northerner: Coming back to the leak in May, after the leak there was a lot of alarm being raised that it was a sign that the decision was final. Do you think that with hindsight, the eventual overturning of Roe is inevitable?

Daar: There was so much speculation about what that meant and I know that the court is purportedly still investigating how that leak occurred – I’m not aware of any final report on that. There was speculation that it was leaked in order to solidify the majority so as to not force one of the justices to flip. I do think that the leak itself will have an impact on public perception about the integrity of the court and the political dialogue that swirls around the court.

The Northerner: Is there any possibility that the court will change its mind on abortion and reproductive rights some time in the future?

Daar: There’s always the possibility. Every decision that the court hands down could be revisited at some point in the future, and it’s certainly possible that this decision could be revisited. Of course it would mean that there is a very significant change in the composition of the court, but should the court change to a more liberal majority, then it’ll certainly advocate for pro-choice laws and move to have the court revisit this decision. No one can doubt that many are thinking about that today.

The Northerner: What do you see happening next? How will the nation react to this decision?

Daar: Everybody will take in the decision in their own personal way. Some people will feel it very acutely, particularly women who may be facing a decision about pregnancy termination … Anybody who cares about our country, about our system of government will think very carefully about what this opinion means and their value systems, how they perceive the American system of government. I hope it will lead to some intelligent, respectful and ultimately productive dialogue.

The Northerner: What do you advise readers to look out for next as they will undoubtedly be bombarded with a media storm in the coming days?

Daar: I advise your readers to become familiar with the American legal system, what the founding documents provide for the checks and balances of the three branches of government. To understand that the court is given the authority through the Constitution and various Supreme Court decisions to interpret the law, and to decide that laws are constitutional or not constitutional. To respect the integrity of our systems of government.

But I also encourage your readers to speak out in a professional way about their views on this decision, whether they agree or they disagree. I encourage them to take appropriate action if they want to support or oppose the decision, and to become involved in a peaceful, respectful and thoughtful way in this no doubt ongoing debate in American life.