Abortion is not illegal in all states if Rowe v. Wade is repealed

A leak from the Supreme Court’s opinion, published by Politico, suggests that the court may overturn Rowe v. Wade in 1973, according to which abortion was legal nationwide.

This has led to questions from many viewers and users of VERIFY social networks. Some people claimed that if the court decides to overturn Rowe v. Wade, that decision will not make abortion illegal across the country, but will refer the matter to individual states.

Can states pass abortion laws if Rowe v. Wade is repealed?

Yes, states can pass their own abortion laws if Rowe v. Wade is repealed. These state laws can either protect access to abortion, or restrict access, or prohibit abortion altogether.

In his 1973 judgment in Rowe v. Wade, stated the Supreme Court that the fundamental right to privacy is enshrined in the provisions of due process in the Fourteenth Amendment, and the right of a person to choose or have an abortion falls under the right to privacy.

The court ruled it illegal to regulate abortion states in the first trimester of pregnancy. In the second trimester, states may introduce some abortion rules that are “reasonably related to maternal health”. Once the fetus reaches the point of “viability” in the third trimester, or the point where it can survive outside the womb with medical support, the state may regulate or prohibit abortion, as long as the laws contain exceptions for cases where abortion is necessary to save the life or health of the mother. “

However, Supreme Court Justice Samuel Alita wrote in draft majority opinion in the case of Dobbs v. Jackson’s Women’s Health Organization, which would repeal Rowe v. Wade that “the Constitution does not refer to abortion, and no such right is implicitly protected by any constitutional provisions,” including the Fourteenth Amendment.

If Rowe v. Wade is repealed, the right to abortion in the first trimester will no longer be protected by federal protection. But that doesn’t mean abortion will be illegal in all of the United States.

Lisa Fuentes, a senior researcher at the Gutmacher Institute, told VERIFY that individual states will be able to pass their own abortion laws. Benjamin Barton, a law professor at Tennessee Knoxville University, agrees.

“If the draft opinion becomes the actual opinion of the majority, the federal constitutional right to abortion will no longer exist, so the decision on whether to allow abortion or not will be decided by individual states,” he wrote in an email to VERIFY. .

About a dozen states have “laws” that ban all or almost all abortions that will take effect if Rowe v. Wade is repealed. According to the Gutmacher Institutemore than two dozen U.S. states “confident or likely” will ban abortions in the absence of Rowe.

On the other hand, some states have passed laws guaranteeing the right to abortion without state intervention.

South Dakota Gov. Christy Noem says it will call for a special legislative session to restrict access to abortion. The state already has a “trigger law” in the books that bans most abortions if the Supreme Court overturns Rowe v. Wade.

In January 2022, New Jersey Gov. Phil Murphy signed the Law on Freedom of Reproductive Choicecodifying the “constitutional right to freedom of reproductive choice” in the state.

“Since Rowe v. Wade is under attack, today’s historic legislation makes it clear that New Jersey’s position in support of the right to reproductive choice remains protected,” Murphy said after signing the bill. “Together with the expansion of contraception, these two bills serve to significantly and significantly expand access to reproductive health and ensure that New Jersey residents now remain in control of their reproductive choices.”