The Nuance of Abortion Laws Without Roe v. Wade

The Nuance of Abortion Laws Without Roe v. Wade October 10, 2018

Legal Gavel (rawpixel on unsplash)
Legal Gavel (rawpixel on unsplash)

Today, the Washington Post carried a story about what happens if Roe is overturned. We need to remember that overturning Roe doesn’t make abortion illegal but allows states to set abortion laws. The Post notes that this leaves a complicated situation:

If the high court acted to overturn Roe, some states would continue allowing women access to abortions, while others may bar them from receiving the procedure — or restrict access to it at various points in a pregnancy and for any number of different reasons.

That means even greater variance in abortion laws across the country depending on whether a state is run by Democrats or Republicans. […]

It’s worth remembering that Roe didn’t guarantee access to legal abortion — the decision states that the procedure can’t be restricted before the point that a fetus is viable [Clarification: Doe v. Bolton – decided the same day by the same judges – made abortion a right past viability]. So overturning Roe wouldn’t change much of anything for states mainly run by Democrats who are supportive of abortion rights — they could keep abortion legal within their borders. […]

But in the 26 states where Republicans hold the governorship and control the legislature, stricter abortion bans would probably follow if the court weakens or eliminates the Roe standard.

WaPo continues, noting a dividing line where it abortion is completely illegal in some states and completely legal in others.

Moderate Abortion Positions

While some states will have abortion bans or abortion rights, I suspect most states would have something in between. Most of the developed world has laws where some but not all abortion is illegal. Generally, it is illegal after a certain number of weeks. In fact, there are only 6 countries other than the USA (of 197) where abortion is legal for any reason late in pregnancy (after 20 weeks).

Also, if we look at polls, Gallup’s polling shows about 50% of Americans believe that abortion should be legal under certain circumstances but not all. In a follow-up survey they showed that while 60% support legal abortion in the first trimester (about 13 weeks); while in the second trimester (about 14-26 weeks), only 1/3 think abortion should be legal; and in third trimester (after 27 weeks) less than 3 in 20 think it should be legal. When examining reasons for abortion, over 75% think that abortion should be legal in cases of rape or if the woman’s life is in danger but 1/3 think it should be legal due to financial hardship and only 20% believe abortion should be legal for any reason.

In general, laws will tend to reflect societal attitudes. If the choice went to state legislatures now, I suspect that some kind of law allowing some but not all abortions would probably pass in most legislatures rather than the current legality for all 9 months, or a ban on all or almost all abortion. You could likely get moderates on both sides supporting a ban on abortion after 15 weeks or except in certain cases, but not an outright ban. I definitely want no legal abortion and suspect most readers concur. However, we need to change people’s attitudes if we want fully pro-life laws.


Roe v. Wade is bad law because it is an emanation from a penumbra. Its legality is based on the constitutional right to privacy but in reality, it takes away a more fundamental right to life. We should change it but that will give us a variety of laws by state. Ultimately, we need to keep our eyes on the goal of making abortion unthinkable, not just illegal.

For the record, I said something similar when Kavanaugh was first nominated.

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