The Notorious RBG has passed—and now the question takes center stage.
With the passing of Ruth Bader Ginsburg, the world at first mourns, but then eagerly awaits President Trump’s decision on his newest appointee for the Supreme Court. Trump’s next appointee will firmly solidify a 6-3 split between conservative and liberal Justices.
One of Trump’s most likely appointees is Amy Coney Barrett, currently a United States Circuit Judge of the United States Court of Appeals for the Seventh Circuit. Barrett is a devout Catholic and fervently “pro-life.” Indeed, during her time as a professor at Notre Dame (also her alma mater), she was affiliated with Faculty for Life, a pro-life group at the university. In 2015, Barrett signed a joint letter to Catholic bishops which affirmed the Church's teachings including "the value of human life from conception to natural death.”
Yikes.
Following Trump’s next pick, it will only be a matter of time until the Supreme Court hears a new abortion case and has an opportunity to overrule the Constitutional protections outlined in Roe v. Wade.
In the past few years a handful of “rogue” states have passed extremely hostile abortion laws, such as Alabama’s law banning nearly all abortions and Georgia’s law banning abortions upon the detection of a heartbeat, usually at around 6 weeks. None of these laws have gone into effect because they are being challenged in the courts. Oddly enough, some suggest that this is precisely the plan for such laws. Being that they are objectively unconstitutional, they will be litigated in court and provide an opportunity for eventual appeal to the Supreme Court.
With a 6-3 conservative bias at the Court, and with Amy Coney Barrett potentially soon-to-be on the bench, the question is more pressing than ever: what happens if Roe v. Wade gets overturned?
If Roe v. Wade Gets Overturned
Should this seminal case be overturned, the power to legalize (or outlaw) abortion would return to individual states. That is the simple answer. It’s important to understand that overruling Roe would not make abortions automatically illegal throughout the country. This is a common misconception. Rather, states would have all the power to decide whether abortions are legal or illegal and how they should be regulated. States across the country already diverge very significantly in their laws regulating abortion; and such divergence would simply be amplified. The opportunities for abortions in California compared to Mississippi would be worlds apart.
As an immediate effect, a few states actually have “trigger bans” in place that would automatically restrict abortion the moment Roe was overturned, whereas a number of states have broad laws promoting abortion rights that would still remain in place.
In the absence of Roe, Congress could eventually step in and pass a law to regulate abortions nationwide. Some suggest that this is actually the best option given that social policy decisions are supposed to be vested with the legislature, and not with the courts. Even some in the "pro-choice" camp support the idea of abortion being taken out of the courtroom. This is because the majority of the population currently supports abortion[1] and more favorable and ironclad laws could be crafted by a democratically-elected Congress compared to the decisions made by a Supreme Court comprised of nine Presidentially-appointed members.
[1] According to Pew Research, 61% of Americans think that abortion should be legal in all or most cases. See https://www.pewforum.org/fact-sheet/public-opinion-on-abortion/.