On Friday, the Supreme Court ruled in favor of Mississippi's anti-abortion law in Dobbs v. Jackson Women's Health Organization, overturning the 1973 Roe v. Wade decision that made abortion legal nationwide.
A copy of the Supreme Court's decision leaked to Politico in May led to questions from many of our VERIFY viewers and people on social media, asking whether this changes abortion access nationwide. Some claimed that the decision doesn't make abortion illegal throughout the country and instead sends the issue to individual states.
THE QUESTION
Is abortion illegal in all states now that the Supreme Court overturned Roe v. Wade?
THE SOURCES
- Supreme Court’s 1973 ruling on Roe v. Wade
- Supreme Court Justice Samuel Alito’s majority opinion on Dobbs v. Jackson Women’s Health Organization
- The Guttmacher Institute, a pro-choice policy and research organization
- Liza Fuentes, senior research assistant at the Guttmacher Institute
- Benjamin Barton, a law professor at the University of Tennessee Knoxville
THE ANSWER
No, abortion isn't illegal in all states now that the Supreme Court overturned Roe v. Wade. States can still pass their own abortion laws to either restrict or guarantee the right to abortions.
WHAT WE FOUND
In its 1973 ruling on Roe v. Wade, the Supreme Court found that a fundamental right to privacy is inherent in the Fourteenth Amendment’s due process clause, and a person’s right to choose whether to have an abortion falls within the right to privacy.
The court’s 1973 decision made it illegal for states to regulate abortion in the first trimester of pregnancy. In the second trimester, states could impose some regulations on abortion that are “reasonably related to maternal health.” Once the fetus reached the point of “viability” in the third trimester, or the point where it could survive outside the womb with medical support, a state could regulate or ban abortions, “so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.”
However, Supreme Court Justice Samuel Alito wrote in the majority opinion on Dobbs v. Jackson Women’s Health Organization, which overturns Roe v. Wade, that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” including the Fourteenth Amendment.
Now that Roe v. Wade is overturned, the right to an abortion in the first trimester is no longer federally protected. But that doesn’t mean abortion is illegal in every state in the U.S.
Liza Fuentes, a senior research assistant at the Guttmacher Institute, previously told VERIFY that individual states can make their own laws about abortions. Benjamin Barton, a law professor at the University of Tennessee Knoxville, agrees.
“If the draft opinion becomes the actual majority opinion, there would no longer be a federal Constitutional right to an abortion, so the decision as to whether to allow abortions or not would be up to individual states,” he wrote in an email to VERIFY before the Supreme Court issued its official ruling.
About a dozen states have “trigger laws” to ban all or nearly all abortions set to go into effect now that Roe v. Wade is overturned. According to the Guttmacher Institute, more than two dozen U.S. states are “certain or likely” to ban abortions in the absence of Roe.
On the other hand, some states have passed laws guaranteeing the right to have an abortion without state interference.
South Dakota Gov. Kristi Noem said in May that she will call for a special legislative session to restrict access to abortions. The state already has a “trigger law” on the books to ban most abortions following the Supreme Court's decision.
In January 2022, New Jersey Gov. Phil Murphy signed the Freedom of Reproductive Choice Act into law, codifying the "constitutional right to freedom of reproductive choice” in the state.
“With Roe v. Wade under attack, today’s historic legislation makes clear that New Jersey’s position in supporting the right to reproductive choice remains protected,” Murphy said after signing the bill. “Together, with expanding contraception coverage, these two pieces of legislation serve to meaningfully and tangibly increase access to reproductive health care, and ensure that New Jersey residents are now, and will remain, in control of their reproductive choices.”
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