Should the justices do so, it will not only make the ability to get a legal abortion more difficult in roughly 22 states, but it also has the potential to alter American politics in some significant, structural ways.
Here are four ways politics could quickly change just months before next year’s midterm election.
All politics are state-based
Should Roe be overturned it will be a triumph for social conservatives who have sought to bring the fight to the states for decades. Prior to Roe, abortion access was a patchwork across different states, where some banned it, some allowed it, and in other states, it happened without much government involvement.
Like the ruling that allowed same-sex marriage nationwide, Roe superseded all state laws and limited restrictions on abortion up to the third trimester of pregnancy. Therefore, overruling Roe would mean the abortion question would go back to the states.
Today, in an era when all politics (even town select board) is driven by the conversation in Washington, overturning Roe would significantly shift the power center to state capitols when it comes to abortion rights.
In particular, there could be a lot of emphasis on governors’ races. While governors cannot pass abortion legislation on their own, they can veto or sign a bill into law with dramatic consequences for those seeking an abortion in ways a member of Congress cannot.
Trump and COVID move off the top political agenda
While other issues have mattered, polling suggests three major topics driving American politics for the past year have been the economy, Donald Trump, and COVID. While the economy rarely leaves the discussion, abortion could very well become a defining issue heading into November 2022. This is not to say that a ruling overturning Roe would change anyone’s mind about whether abortion should be legal, but it will, for the first time since the landmark ruling, put the energy fully on the left to change laws.
This will mean new political institutions will develop, ads will work to galvanize an abortion rights base, and there could be a new level of activism that may have to work for decades until the Supreme Court has a different makeup.
Abortion debate gets super-specific and confusing
One technical point here is just how abortion would be discussed in a post-Roe America. Since 1973 Americans and their politicians were basically offered something of a binary choice on abortion: do they think the court ruling should stay, or should it go? If the ruling is overturned then we have a harder, but very important, conversation.
For example, if abortion is to be banned in a certain place, then who is going to enforce such a law, who is going to be charged with a crime, and what is the specific charge and penalty? Is it years in prison? A misdemeanor?
Further, even for states where there are abortion rights, there is no longer a federal framework to follow. So at how many weeks should abortion be legal? Up until birth? Third trimester? Since legislators may need to put a number on the law, we could see debates over 20 weeks versus 21 weeks.
This is a conversation some states have not really had.
Technology, not courts or votes, will be the game-changer
While abortion-rights advocates may focus on the short-term strategy of winning in state capitols and the long-term strategy of getting a different US Supreme Court, the reality is that it’s technology that will shape the debate and what is possible to legislate.
For example, unlike before Roe, women can now obtain abortions through medication up to 10 weeks into pregnancy. While it’s not currently legal for such medication to be administered by mail, if that were to change, there might be zero way to prevent a woman getting a pill in the mail in a non-descript envelope.
Obviously, this would only work if a woman knew she was pregnant before 10 weeks, knew about the pill, and had the ability to get it in time. But what if a different pill were developed that allowed women to manage their own abortions even later into pregnancy?
Indeed, the action here might be in the science community and not in politics at all.