Altered States

“This is not a drill.” That’s how one prominent abortion-rights group described the United States Supreme Court’s recent decision to hear a case directly challenging Roe v. Wade, the landmark 1973 ruling guaranteeing a nationwide right to abortion. The Court will likely hear arguments this fall, with the anti-abortion movement poised for a historic victory—made possible by former President Donald Trump’s appointment of three conservative justices to the U.S. Supreme Court. So, what would America be like without Roe?

Mary Ziegler, a professor at the Florida State University College of Law, is the author of three books on the history of U.S. abortion law and politics. According to Ziegler, roughly half the states in the country would outlaw abortion if Roe were overturned. Illegal abortions would increase, and more people would travel across state lines for access to the procedure—a more difficult proposition for those with fewer resources. Meanwhile, states committed to abortion rights might look for ways to solidify them and expand access—including to people from states where abortion were outlawed. While the future of abortion rights in America remains uncertain, Ziegler says, the issue wouldn’t end with Roe. If anything, the issue would only become more politically salient. “The abortion wars would get even uglier.”

Graham Vyse: How would the overturn of Roe v. Wade change the country?

Mary Ziegler: In some ways we’ve had a preview, because there are already big differences between the states when it comes to abortion, but there would be much sharper distinctions. The anti-abortion movement would focus on winning recognition of fetal personhood or an outright national ban on abortion.

Vyse: Legal recognition of “fetal personhood” would go beyond overturning Roe?

Ziegler: Overruling Roe probably would mean holding that the U.S. Constitution doesn’t say anything about abortion—and therefore that states are free to do whatever they want. By contrast, some anti-abortion lawyers argue that the writers of the U.S. Constitution’s Fourteenth Amendment thought of fetuses or unborn children as rights-holding people. Therefore, they say, fetuses or unborn children are entitled to due process and equal protection. That would mean that abortion is unconstitutional. We’re not likely to get that outcome anytime soon—though I do think it’s ultimately possible, given how conservative the Supreme Court is.