Where Does Roe Go From Here?

Georgia, Alabama, Missouri, and Ohio are among the states fighting to overturn legal abortion in America. With a favorable bench, how might Roe v. Wade look in the future?

Roe v. Wade's Legislative Future

Amanda Martinsek

June 12, 2019 02:06 PM

In real estate, it is location, location, location. In appellate practice, it is forum, forum, forum.

The flurry of laws currently being enacted in states including Georgia, Alabama, Missouri, and Ohio are all driven by a seismic change in the ultimate forum—the U.S. Supreme Court. With the confirmation of Brett Kavanaugh to the Court late last year, right to life/anti‑abortion groups scrambled to enact state laws that severely restrict a woman’s right to choose—thus teeing up a complete reconsideration of Roe v. Wade.

For the first time since Roe was decided in 1973, those opposed to its holding feel confident that there are five votes on the Supreme Court willing to overturn its finding that:

“A state criminal abortion statute…that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.”

The holding of Roe determined that, in the first trimester, “the abortion decision and effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” In the second trimester, “the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.” In the third trimester, Roe weighed the state’s “interest in the potentiality of human life” more heavily, thus, permitting the state to “regulate and even proscribe, abortion except where it is necessary…for the preservation of the life or health of the mother.”

New state laws fly in the face of Roe’s trimester by trimester analysis. In Missouri, as of May 17, no woman may have an abortion after the first eight weeks of pregnancy. Nor does Missouri permit exceptions for rape or incest. Similarly, on May 7, Georgia joined three other states that in just the last year banned abortions after six weeks of pregnancy—considered a proxy for the time that a doctor can detect a fetal heartbeat. Alabama now essentially bans all abortions—once again without exception for pregnancy caused by rape or incest.

Even before these new laws, there were a number of cases percolating through the federal courts addressing state laws implicating the issues of:

  1. parental consent;
  2. requirements of hospital privileges for abortion providers;
  3. reporting requirements concerning abortion procedures;
  4. requirements that abortion providers have agreements with ambulance companies and hospitals;
  5. mandatory ultrasounds;
  6. fetal tissue disposal; and
  7. prohibition of dilation and evacuation abortions.

The first of these challenges to reach the newly composed Supreme Court was Box v. Planned Parenthood of Indiana and Kentucky. In a per curiam decision, the court reversed the Seventh Circuit’s determination that Indiana’s restrictions on the disposition of fetal remains was not rationally related to Indiana’s stated interest in “the ‘humane and dignified disposal of human remains.’” In the same per curiam ruling, the court declined to consider the question of whether “Indiana may prohibit the knowing provision of sex-, race- and disability-selective abortions by abortion providers.” Instead, pointing out that the Seventh Circuit has been the only circuit to address the issues thus far, the court denied certiorari consistent with its “ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

Court watchers are left reading the Indiana tea leaves. One thing seems fairly clear—there were not five votes on the Supreme Court interested in reviewing and overturning the Seventh Circuit’s rejection of Indiana’s statute prohibiting abortions based on sex-, race-, and/or disability-selectivity. For those behind the new state laws that unambiguously contravene the holding of Roe, the court’s lack of appetite to take up the first challenge before it may be a cause for caution.

It does, however, also seem pretty clear that with all of the challenges to different state laws restricting the rights established by Roe wending their way through multiple circuits, there is likely to be a point where there are conflicting decisions in two or more circuits. As stated in Box, that is a time where, characteristically, under Rule of the Supreme Court 10, certiorari is granted and an issue is joined. At that point, more conservative justices, including Gorsuch and Kavanaugh, will be tested. Overruling established Supreme Court precedent is relatively rare. However, a state law outright outlawing abortions in the first and second trimesters of pregnancy is undeniably in contravention of the protections provided by Roe.

What happens if Roe is overturned? If the Fourteenth Amendment does not protect a woman’s right to decide, it is no longer a federal issue. As before Roe, abortions will be regulated exclusively by state law, on a state-by-state basis.

Related Articles

Destiny Fulfilled

by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

Ketanji Brown Jackson Becomes Joe Biden’s Nominee for Vacant SCOTUS Seat

by Gregory Sirico

President Joe Biden has nominated former lawyer Ketanji Brown Jackson for the Supreme Court of the United States.

Biden Nominates Ketanji Brown Jackson

Biden’s History-Making SCOTUS Nominees

by Gregory Sirico

The promise of the first Black female Supreme Court Justice in history is on the verge of reality as the top three candidates for the most recent vacant seat are announced.

Biden Promises First Black Female SCOTUS Pick

An Interview With Marie Tomassi

by Best Lawyers

St. Petersburg's 2020 "Lawyer of the Year" honoree in Appellate Practice

Marie Tomassi Appellate Practice

Don’t Fall Asleep at the Wheel

by Paul Goatley

Identify Exhaustion or Risk Waiving a Defense.

Don’t Fall Asleep at the Wheel

Traversing the Immigration Frontier

by Best Lawyers

Brian Graham Interview LOTY

What New York's Child Victims Act Means for Public Schools

by Anastasia M. McCarthy

The new Child Victims Act is expected to have a profound and long-lasting impact on public school systems.

Understanding New York's Child Victims Act

Michael Baughman, Pennsylvania’s 2018 Lawyer of the Year in Media Law

by Abigail Rowe

An interview with Michael Baughman, who was recognized with the 2018 "Lawyer of the Year" award in media law.

Michael Baughman, Pennsylvania’s 2018 Lawyer

Robin Meadow, Southern California 2018 "Lawyer of the Year" for Appellate Practice

by Greines, Martin, Stein & Richland

Robin Meadow of Greines, Martin, Stein & Richland LLP was named 2018 "Lawyer of the Year" for Appellate Practice.

Robin Meadow LOTY

Supreme Court Decision Will Play Important Role in Shaping Defendant Privacy Rights

by Gus Kostopoulos

The primary question will likely come down to whether or not cell phone data and location records are protected interests under the Fourth Amendment.

Defendant Privacy Rights

Send, Serve, or Both

by Holly M. Polglase and Matthew E. Bown

The Supreme Court decides the meaning of Article 10(A) of the Hague Service Convention.

Article 10(A) of the Hague Service Convention

Victory for The Slants and Redskins

by Carol Steinour Young and Emily Hart

On June 19, 2017, the United States Supreme Court settled the issue of whether an offensive name—in this case, an Asian-American rock band called “The Slants”—can properly be registered as a trademark.

The Slants Legal Case Decoded

Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco

by Clifford J. Zatz and Josh Thomas Foust

The decision “may make it impossible to bring certain mass actions at all.”

Bristol-Myers Squibb Co. Mass Tort

Post-Conviction Relief

by Douglas Trant

In these post-conviction cases, we look for Constitutional violations that deprived the defendant of a fair trial and undermined confidence in the outcome.

Post-Conviction Relief

In the News: Austin/San Antonio

by Compiled by Tess Congo

A summary of newsworthy content from Austin/San Antonio lawyers and law firms.

Austin/San Antonio In the News

Trending Articles

The Best Lawyers in Spain™ 2023

by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Chile™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms in Chile.

White star in blue box beside white box with red box on bottom

Thirteen Years of Excellence

by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

The 2023 Best Lawyers in Portugal™

by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

Announcing The Best Lawyers in Peru™ 2023

by Best Lawyers

Honoring our awarded lawyers for 2023 in Peru.

Red and white stripes with green leaf symbol

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in Spain™ 2022

by Best Lawyers

The results include an elite field of top lawyers and firms.

The Best Lawyers in Spain™ 2022

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?


Rewriting 𝙃𝙀𝙍𝙨𝙩𝙤𝙧𝙮 One Verdict at a Time

by Justin Smulison

Athea Trial Lawyers was formed only a year ago by several prestigious lawyers seeking justice for their clients, and together they are making history.

Six female lawyers sitting in office

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Strength in Numbers: When Partnering Up May Be Best in Whistleblower Litigation

by Justin Smulison

Whistleblower claims make headlines when they result in multimillion-dollar settlements. But the journey to the courtroom is characterized by complexity and requires time and resources. Bienert Katzman Littrell Williams partner and The Best Lawyers in America awardee Michael R. Williams discusses when and why partnerships between counsel will strengthen whistleblower litigation.

A Blue Person in the Middle of White People

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Announcing the 2022 "Best Law Firms" Rankings

by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards