The past, present and uncertain future of US abortion law
Alexia Korberg, Daniella Lorenzo and Tatiana Laing assess the struggles to protect reproduction rights in the US
US abortion rights have been relatively stable for the last half-century since the Supreme Court recognized in the landmark case Roe v. Wade  410 US 113 that the constitutional “right of privacy. . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”.
Although the US Supreme Court has repeatedly affirmed this core principle in a series of cases over the subsequent decades, the current Supreme Court, with its 6-3 conservative majority, has recently signaled it may revisit this foundational constitutional right, upon which over than two generations of Americans have relied.
Abortion rights, historically
Abortion was legal under common law in the US in the eighteenth century and into the middle of the nineteenth. During this period, most states mirrored eighteenth century English common law, and thus allowed abortion at least until ‘quickening’ – the point at which a fetus’s movements are recognizable in utero, typically in the sixteenth to eighteenth weeks of pregnancy.
State-level abortion restrictions increased over the second half of the nineteenth century and peaked in the mid-twentieth century such that, as the Supreme Court observed in Roe, “at the time of the adoption of our Constitution, and throughout the major portion of the 19th century . . . a woman enjoyed a substantially broader right to terminate a pregnancy than she” did in 1973, when Roe was decided.
By that point, nearly all states outlawed abortion, and only a minority of states made limited exceptions to save a woman’s life or in instances of rape, incest or fetal anomaly.
The US Constitution includes no express right of ‘privacy.’ Instead, the Supreme Court has established over the years that such a right necessarily flows from the Fourteenth Amendment of 1868 which prohibits state and local governments from depriving persons of life, liberty or property without due process of law.
In Roe, the court recognized for the first time that the pregnant person’s ability to decide whether to have an abortion is among the rights protected by that broader guarantee of privacy. However, the court also recognized the state has countervailing and “legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows” as the pregnancy progresses.
In an attempt to address this tension, the court held that while individual states could regulate abortion at any point, they could only ban it after state interests outweigh those of the pregnant person. Roe drew this line at viability – the point at which a fetus can survive outside the womb – which was then around 28 weeks of pregnancy, and no earlier than 24 weeks.
The current legal landscape
In the nearly half century since Roe v. Wade was decided, state after state has passed laws attempting to ban pre-viability abortions, yet court after court has struck them down. But states can, and do, attempt to practically limit access to abortion through a latticework of onerous regulations.
Such laws, sometimes called Targeted Regulation of Abortion Providers (TRAP laws), impose stringent requirements for abortion facilities that do not exist for facilities where riskier medical procedures are performed (e.g. specifying corridor width), unnecessarily limit which medical professionals can provide abortion care (e.g. only allowing doctors with admitting privileges at hospitals within a certain number of miles of the abortion clinic – an impossible credential to acquire because many hospitals refuse to give such privileges to abortion providers), prohibit the use of telemedicine solely in the abortion context and so on.
Because of the complex web of individual state laws governing abortion access, a pregnant person’s ability to exercise their constitutional right varies significantly based on where they live. Over a third of states compel providers to give patients counseling that is not supported (or is actively discredited) by the medical community – for example, to falsely advise patients that abortions cause breast cancer. Half of states force abortion patients to wait up to 24 to 72 hours between when they receive counseling and when either the procedure is performed or the abortifacient pill is distributed (more than a third of abortions in the US are not procedures at all, but rather, are effectuated with medicine).
Since 2017, as a result of such regulations, six states have only one abortion clinic and many seeking abortion must travel hundreds of miles to access care, often making that trip twice due to waiting requirements. These practical barriers are catastrophic for the roughly 50 per cent of those seeking abortion care who live below the national poverty line.
After Donald Trump became President in 2016, state legislatures in the South and Midwest have accelerated their efforts to pass blatantly unconstitutional laws. In March 2018, Mississippi passed a law banning abortion at 15 weeks – months before viability, which is now between 22 and 23 weeks at the earliest.
Mississippi’s lone remaining abortion clinic immediately sued to invalidate the law and both the trial and intermediary appellate courts agreed with the clinic that the law was unambiguously unconstitutional under Supreme Court precedent. Mississippi appealed to the Supreme Court, which spent an unprecedentedly long eight months deliberating whether to accept the appeal. During that period, the liberal justice Ruth Bader Ginsburg died and was replaced by Amy Coney Barrett, a vocal critic of abortion. There are now six Republican appointed justices on the court.
The Supreme Court ultimately agreed to take Jackson Women’s Health Organization v. Dobbs 379 F. Supp. 3d 549 earlier this year. It surprised many because the court only hears one per cent of cases put before it, and generally only does so when there is a novel legal issue or there’s disagreement between the appellate courts, neither of which was applicable in this case. Moreover, one of the Supreme Court’s most foundational jurisprudential principles is stare decisis, or faithful adherence to past precedent. The Supreme Court had reaffirmed the basis of both Roe and Planned Parenthood v. Casey, 505 U.S. 833 as recently as 2020.
This case marks the first time in the 48 years since Roe that the Supreme Court has agreed to hear a case regarding the long-resolved constitutionality of a pre-viability ban.
The Supreme Court held oral arguments on 1 December, 2021 and could issue its decision in the first half of 2022. If the court overturns Roe, abortion would immediately become outlawed in 18 states, and more are expected to pass new legislation curtailing abortion access.
The future of abortion access
Further abortion restrictions have already been passed in 2021 than in any other year in US history, even with Roe still the law of the land. For example, two days after the Supreme Court agreed to hear Mississippi’s case, Texas’ governor signed into law S.B. 8, a ban on abortion at six weeks of pregnancy, which is many months before viability and sooner than many people even know they are pregnant.
S.B. 8 was specifically designed to stymie any lawsuits to invalidate it. It works by empowering the general public to enforce it rather than the government, which means that potential litigants have nobody to sue to block the law. Additionally, S.B. 8 creates a bounty system to reward members of the public with $10,000 to go after pregnant people seeking abortions and anyone who in any way facilitates abortion care, from doctors to taxi drivers.
On 1 September, 2021, the Supreme Court denied an emergency request to block the law. Since then, people in Texas have been unable to exercise their constitutional right to access pre-viability abortion care. Meanwhile, lawmakers in Florida and Ohio have introduced copy-cat bills, and several other states are poised to follow suit.
While the Democratically-controlled Congress recently passed a federal bill to protect abortion access that has President Biden’s support, it is not expected to survive in the Senate and become law. So, it is up to the Supreme Court. And the world, and the countless Americans who have and will continue to rely on this core constitutional right, are watching.
Alexia Korberg is a litigation partner with Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York, where they practice complex commercial litigation and pro bono constitutional impact litigation, including most recently as co-counsel in Dobbs v. Jackson Women’s Health Organization. Daniela Lorenzo and Tatiana Laing are litigation associates at Paul, Weiss. paulweiss.com