What happens to abortion if Roe vs. Wade is overturned? Legal experts explain

Legal experts explain how overturning Roe v. Wade would affect abortion access across the country. (Photo: Getty Images)

After the Supreme Court draft opinion leaked back in May, indicating the court would vote to overturn Roe v. wade — the 1973 landmark ruling that legalized abortion nationwide — some have wondered what, exactly, would change in the aftermath and how it would affect access to abortion care across the country.

Yahoo Life reached out to legal experts on abortion to answer some of the most common questions people have about what abortion rights, access and criminalization would look like in a post-Roe v. wade world.

What exactly does it mean if Roe v. wade is overturned?

if Roe v. wade is overturned, “it means that there is no longer a federal constitutional right to abortion,” Greer Donley, assistant professor at the University of Pittsburgh Law School, tells Yahoo Life. Instead, “every state is permitted to set their own abortion policy, including banning all abortions in their state,” she says.

This means that “abortion may not be against the law everywhere and that it will vary from state to state, including when abortion is illegal and how it is enforced,” Jenn Dye, the Theodore M. Berry director of the Nathaniel R. Jones Center for Race, Gender and Social Justice at the University of Cincinnati College of Law, tells Yahoo Life.

The right to abortion has been protected for nearly 50 years. Heather Shumaker, director of state abortion access at the National Women’s Law Center, tells Yahoo Life that overturning that legal precedent will have “a devastating impact on the health and lives of women and all people who can become pregnant.”

Restricting or banning access to abortion “will force people to carry unwanted pregnancies and deliver in a country with unprecedented maternal mortality and morbidity rates, particularly among Black women and birthing people,” says Shumaker.

As Sally Frank, professor of law at Drake University, and many others have pointed out, “the fact is that you can ban abortion, but you won’t stop abortion,” she tells Yahoo Life. “Women will get abortions when they need to get an abortion, and they’ve done that throughout the history of the US The question is, will it be safe? Or will they end up in emergency rooms from botched abortions?”

Will abortion be against the law everywhere?

In a nutshell, no. However, if Roe vs. wade is overturned, “roughly half the country is expected to ban abortion,” says Donley. “Many states have affirmatively passed laws that protect abortion access in their state, and other states will continue to permit it, but regulate it tightly.”

If overturned, how soon would it be illegal to obtain an abortion in certain states? Is it immediate?

If overturned, “it could be illegal to obtain an abortion immediately, depending on the state you live in,” says Dye. “Thirteen states have trigger bills in place that will go into effect if/when the Supreme Court were to overturn Roe that will make abortions illegal.”

Dye explains that another 13 states have “some other types of bans in place that will severely limit the ability to get abortions,” adding, “Again, the details and mechanisms of these bans vary by each state, but they all have the same intent of banning abortions.”

Still in other states in favor of restricting abortion, “it will take legislative action to change the law,” says Frank, which would happen in the months following roe being overturned. “If someone needs an abortion, they can call an abortion provider [near them] who will know what the laws in that state are.”

Can you get arrested for having an abortion in a state where it’s illegal?

It depends on the individual state’s laws. Most of the state abortion bans that will go into effect if Roe v. wade is overturned “have an exception so that the pregnant person cannot get arrested for obtaining an abortion, but that might change,” warns Donley. “And the people who help someone get an abortion might still be vulnerable under some state laws.”

As Dye explains it, in general, “the trend is to criminalize those giving abortions or assisting those seeking abortions rather than criminalizing the women seeking” them. That’s because it’s “a lot easier” to criminalize those who are performing the abortions. “It also fits the narrative of women who’ve been somehow ‘misformed’ or ‘manipulated’ somehow into getting an abortion, which feeds into the narrative that women cannot make clear and informed decisions about their bodies for themselves,” says Dye.

However, Dye, “we have seen a disturbing trend where some women are being prosecuted. Again, this will vary depending on the state you live in and the law in place there.”

Can a woman have an abortion in another state where it’s legal without being prosecuted when she returns home?

As of now, it is legal for a woman to cross state lines to get an abortion. “However, whether state legislatures would pass laws to make that more difficult is yet to be seen and raises important questions about how those laws would be enforced,” says Dye. “We saw this, for instance, in Texas’s recent SB8 abortion bill” — which bans abortions once an ultrasound can detect a fetal heartbeat at around six weeks of pregnancy — “that allowed Texans to sue those who helped others seek an abortion, even if it was outside of the state of Texas.”

Frank says there are some states that are considering passing laws that apply to traveling to other states for abortion care. But, she says, “most have not made it a crime for the woman who has had the abortion. They’ve made it a crime for providers,” adding, “There are questions of whether they can ban a woman from leaving the state to have an abortion.”

However, Shumaker says she would be “surprised” if anti-abortion states and prosecutors didn’t “try to prosecute people for abortions they’ve had out of state.”

How might these laws be enforced?

Experts say it depends on how the state’s law is written. Some, like the “infamous” Texas SB8 law, “are enforced civilly and allow civil lawsuits — by just about anyone — against providers and others that help folks get abortions,” says Shumaker. “Other laws criminalize abortion providers and threaten them with felony crimes.”

In addition, litigation challenges to stop these laws “would likely be unsuccessful,” says Shumaker, “because overturning roe will require federal courts to essentially defer to legislators who are intent on restricting or banning abortion, meaning almost every abortion ban or restriction is likely to be upheld.”

Can women in states where abortion is banned or restricted order pills online for a medication abortion?

Medication abortion — which involves taking two prescription medications, mifepristone and misoprostol, typically within a 48-hour period to end a pregnancy — is “safe and effective,” says Shumaker, and can be safely done at home within the first 10 weeks of a pregnancy. But whether or not it would be legal to order the medications if roe is overturned would be determined by the state in which the person lives.

“Thus, if the state has made doing so illegal, then ordering the pills even if it’s from another country or another state — online, a telehealth appointment with a doctor that allows abortion, etc. — would make it illegal,” points out Dye. “However, because there is a lack of enforcement mechanisms there are gray areas.”

Currently, there are several organizations, such as AidAccess and Plan C, that “provide trusted information to help people find this safe and effective medication,” notes Donley.

How will women who want access to abortion be protected?

“Depending on where they live, they won’t be protected,” says Donley.

However, Dye says there are some things people can do, including “donating to organizations that prioritize women’s access to healthcare and reproductive healthcare; being an engaged citizen at the local, state and national level for your districts because so much of this is going to come down to legislation — they could codify the right to abortion, or alternatively, criminalize things; volunteer; and have difficult conversations and share your story if you feel comfortable with your social circles.”

Frank agrees, suggesting that for anyone who can, “they should donate to local providers and services that help women who have to leave their states” for abortion care.

She points out that people who are economically disadvantaged are typically hit the hardest by abortion bans, while those with higher incomes can typically afford to travel to another state or country where it’s legal. “It’s the people who don’t have the means to do it,” Frank says. “Those are the women who will try self-induced abortion or try to get medication however they can. Some of them will die. Some will be fine, but some of them won’t.”

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