U.S. Supreme Court Overturns Roe v. Wade, Ending Federal Right to Abortion
The decision leaves it up to individual states to decide whether to allow women to terminate their pregnancies and under what conditions.
The U.S. Supreme Court has struck down the landmark Roe v. Wade decision that has protected abortion rights nationwide for half a century, allowing individual states to ban or restrict pregnancy terminations.
The court overturned Roe by a 5-4 vote. Associate Justice Samuel Alito wrote the opinion (PDF), joined by Associate Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts filed a separate, concurring opinion.
“The Constitution does not confer a right to abortion,” Alito wrote in the decision. “The authority to regulate abortion is returned to the people and their elected representatives.”
President Joe Biden described the decision as a “tragic error by the Supreme Court,” in remarks from the White House after the ruling. While the president noted that only Congress can restore a national right to abortion, he said his administration will work to protect clinicians who provide abortions to people from other states and work to maintain access to abortion pills.
"This fall, Roe is on the ballot," Biden said. "Personal freedoms are on the ballot. The right to privacy, liberty, equality — they're all on the ballot. Until then, I will do all in my power to protect a woman's right in states where they will face the consequences of today's decision."
With the decision, states now have the ability to permit or prohibit abortions as they see fit. Twenty-two states had laws on the books as of June 1 that are expected to completely ban or heavily restrict abortions, according to an analysis by the Guttmacher Institute. Sixteen states and the District of Columbia have laws in effect that protect abortion rights.
Abortion restrictions will occur in several ways. Seven states — Alabama, Arizona, Arkansas, Mississippi, Oklahoma, West Virginia, and Wisconsin — had abortion bans on the books before Roe that can now once again be enforced.
Another 13 states have so-called trigger bans on the books designed to automatically ban or restrict pregnancy terminations in the event that the Supreme Court overturns Roe. These states include Arkansas, Idaho, Kentucky, Louisiana, Mississippi, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.
Protections also vary, according to Guttmacher. The right to abortion is guaranteed throughout pregnancy in the District of Columbia and four states — Colorado, New Jersey, Oregon, and Vermont.
A dozen states have laws permitting abortions prior to fetal viability — typically about 23 to 24 weeks gestation — or when medically necessary to protect the life or health of the pregnant person. These states include: California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New York, Rhode Island, and Washington.
More than half of U.S. women who get an abortion are in their twenties, and the vast majority of these procedures are done early in pregnancy, at up to 13 weeks gestation, according to the Centers for Disease Control and Prevention (CDC). Only about 6 percent of abortions are performed between 14 and 20 weeks gestation, and fewer than 1 percent are done later in pregnancy.
Roughly 2 in 5 abortions in the country are done using medication. Abortion pills have been legal for more than two decades as an option for ending pregnancies up to about 10 weeks gestation.
There were roughly 630,000 legal abortions in the United States in 2019, according to the CDC. The abortion rate has been declining in recent years. There were 11.4 abortions for every 1,000 women ages 15 to 44 years old in the United States in 2019, a 21 percent decline from the abortion rate in 2010.
One open question now that Roe is no longer the law of the land is how easy it may be for residents of states with abortion bans to access care elsewhere.
About 8 percent of U.S. patients travel out of state for abortion procedures, according to a study published in 2017. This proportion was far higher in several states with some of the most restrictive access laws. Three in four women left Wyoming for abortions, and over 55 percent of women traveled out of South Carolina and Missouri.
Some states with restrictive abortion laws may enact laws banning travel to other states for these procedures, although these may face legal challenges. A law enabling private citizens to sue anyone helping a woman obtain an out-of-state abortion was proposed in Missouri earlier this year.
Other states with broad abortion protections are looking for ways to expand access to women who live in places where these procedures may become illegal. California and New York are among the states working to expand abortion access for people traveling from states where procedures are restricted or banned.
Medication abortion — a regimen of the drugs mifepristone and misoprostol — is an option for ending pregnancies up to about 10 weeks gestation.
In December, the U.S. Food and Drug Administration (FDA) permanently lifted a federal requirement for patients to obtain prescriptions for medication abortions at in-person visits. This enables patients to receive medication by mail, aided by telemedicine visits.
However, several states have restricted use of these pills, according to the Guttmacher Institute. In 32 states, only physicians can provide these medicines, and not nurse practitioners or other providers. There are also 19 states that require doctors to be physically in the same room with women when they take pills for a medication abortion.
In a dissenting opinion, Associate Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan outlined the far-reaching implications of overturning Roe.
“After this decision, some States may block women from traveling out of state to obtain abortions, or even from receiving abortion medications from out of state,” the three justices wrote in their dissenting opinion.
Beyond this, some states may also criminalize efforts to provide information or funding for abortion or to assist women with accessing abortion services in other states where it is legal, according to the dissent.
“Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest,” the dissenting opinion concludes. “If that happens, `the views of [an individual state’s] citizens’ will not matter.”
As more states move to ban or heavily restrict abortions, more women in the short-term may be able to travel out-of-state for care, says Carolyn Westhoff, MD, a professor of obstetrics and gynecology and public health at Columbia University in New York City.
“Bear in mind that states will welcome these people, but in the short run,” Dr. Westhoff says. "Whether we have enough clinicians to handle these cases is unclear.”
Low-income patients will have the hardest time accessing care, and the most immediate consequences as state abortion bans take effect, Westhoff adds. “Poor women already have higher maternal morbidity and mortality, and this will become worse.”
Maternal mortality rates are already higher in the United States than in many other developed countries. Restricting access to abortion will exacerbate the problem, Westhoff says.
“Pregnant individuals will be unable to access abortion care during medical complications, and some of them will die due to these complications,” Westhoff says.