What a Post-Roe World Could Mean for Abortion Laws

What comes next for a world without Roe? What laws will be put into place to protect the rights of the unborn?

By Published on June 22, 2022

“We are, apparently, on the cusp of a great achievement. The crowning achievement of the conservative legal movement,” Ed Whelan said in a speech Thursday at The Heritage Foundation, on the pending Supreme Court ruling that could overturn Roe v. Wade.

“Overruling of opinions that epitomize the worst of judicial activism. Roe, written some 50 years ago, is a rambling opinion, devoid of coherent legal analysis,” said Whelan, a distinguished senior fellow at the Ethics and Public Policy Center. “It overrode the laws of all 50 states and created a radical abortion regime that has corrupted American politics and culture ever since.”

Whelan was 1 of 3 panelists at a symposium co-hosted by his organization, The Heritage Foundation, and Americans United for Life. (The Daily Signal is the news outlet of The Heritage Foundation.)

Clarke Forsythe, senior counsel for Americans United for Life, and Denise Harle, his counterpart at Alliance Defending Freedom, joined Whelan in the panel discussion moderated by Roger Severino, vice president of domestic policy at The Heritage Foundation, to answer a complicated question.

If Roe v. Wade and Planned Parenthood v. Casey are overturned as a result of the ruling in Dobbs v. Jackson Women’s Health Organization, a decision expected by the end of the month, what are the next steps for the pro-life movement?

Forsythe argued that federalism would shape the future of pro-life laws.

In the past, “when the Supreme Court, or the president, or Congress was hostile or deadlocked, the cause for life went to the states,” said Forsythe. “It would be tragically counterproductive to seek some national solution to abortion that leaves out the states and the important role that the states have had.”

Blue states, such as California and New York, would likely advance abortion access, while red states, such as Alabama and Mississippi, would sharply restrict it. But as pro-life causes gain ground, state-level work to ban abortion would be easier to achieve than federal action.

“If you want a constitutional amendment, someday, we’re going to have to secure 38 states,” Forsythe said.

Harle separated what state laws currently look like versus what they likely will look like regarding abortion into three categories.

The first constitute pre-Roe laws that were already in place that protected life at conception and laws that would trigger if and when the decision is overruled. Next are measures like “heartbeat” laws or viability laws that limited when abortion could legally take place. Finally, there are laws that will be possible once Roe is overturned.

In the best-case scenario, she said, Roe would be overturned and the laws currently on the books would go back into effect. States would also have the freedom to pass more pro-life laws in the future.

But Harle warned that conservatives had to be prepared for a worst-case scenario, where the 15-week ban on abortion is ruled constitutional, but Roe and Casey are allowed to remain intact.

Additionally, Harle argued that conservatives need to focus on educating the public about what overturning Roe really means.

“The reality is, people never supported Roe. The majority of people don’t think abortion should be legal past the first trimester,” Harle said. “Those conversations to minimize the ignorance are going to be very important.”

Severino brought up the protests in front of the homes of conservative Supreme Court justices and the recent assassination attempt on Justice Brett Kavanaugh, and asked the panelists what their thoughts were on the increasingly aggressive actions taken by the pro-abortion left.

Whelan noted that there had also been several attacks on pregnancy resource centers and questioned where the Department of Justice was and what Attorney General Merrick Garland was doing to address the violence and vandalism.

“We need to make sure that we squelch the violence, and if you think things are ugly now, they could get a lot uglier very quickly,” he said.

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Severino asked Forsythe what pro-life states could do to curtail chemical and medical abortions, such as mail-order abortion pills, distribution of which will likely spike in the aftermath of an overturning of Roe.

“The states have been working over the past decade to limit chemical abortions in a number of ways,” said Forsythe. “But it’s also within Congress’ power, expressly in the Constitution, to pass a federal law on that. And at the earliest possible opportunity, Congress should pass a federal law.”

He added, “I don’t think the states have done enough yet because of Roe and Casey. But I’m sure they will be addressing it soon.”

Severino ended the discussion by asking the panel if overturning Roe means the Supreme Court will be finished with abortion.

“It’s too much to say the court would be out of the business altogether, but it would be out of it, say, 95%, and this matter would be restored to our elected representatives,” said Whelan.

“One of the strengths of [Justice Samuel Alito’s] draft opinion is that, repeatedly, he says Roe and Casey are overturned and explains why. Since there’s no abortion right in Anglo-American history, there is no other clause of the Constitution in which an abortion right can be tucked,” added Forsythe. “So, it’s very clear in that regard in trying to keep the court out of it and return it to the states as much as possible.”

 

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