What Would Happen If Roe v. Wade Were Reversed?

The abortion debate has made the news cycle once more. Last week, Justice Alito's draft opinion on Dobbs v. Jacksons Women's Health Organization was leaked. This case is dealing with whether all pre-viability prohibitions are on abortions are constitutional or not. This opinion is significant not only because it rules that the prohibitions are constitutional, but because it states that Roe v. Wade and Planned Parenthood v. Casey should be reversed. Granted, the draft is not finalized. The majority opinion could end up being narrower than reversing Roe v. Wade. Also, it is not guaranteed that at least four other Justices will sign the opinion. None of this has not stopped political pundits from trying to figure out what would happen if Roe v. Wade were indeed reversed. I am curious as to what would happen, which is why I would like to take a crack at figuring out some possible outcomes here today.   

Impact on Abortion Access

First, let's touch upon how such a ruling would affect abortion access. As frantic as abortion activists have been the past few days, a reversal of Roe v. Wade would not be the end of abortion in the United States. Abortion access would be determined on a state-by-state level. There are 18 states with total or near-total abortion bans. Four states have early-term bans that cover abortions after the sixth week. 

How much will this end up reducing abortion access? Not as much as one would think. In September 2021, Texas had banned abortion with a heartbeat bill. Based on the available data, the ban reduced the abortion rate of Texan women by about 10 percent. What would happen on the national level? One of the amicus briefs filed was by economists in support of the respondents. This amicus brief had calculated that abortion access would be reduced by 14 percent if Roe v. Wade were overturned. Middlebury College economist Caitlin Knowles Myers similarly projected a 14 percent decline. Why are the decreases more modest? 

1. One reason is that there is likely an inelastic demand. In layman's terms, the demand for abortion services is still high enough where people are willing to get on in spite of the restrictions. Even so, there still seems to be at least some effect on abortion services. 
2. Traveling to another state is an option. It is true that those with modest financial means and the furthest to travel will be most impacted (e.g., women in southeastern Texas and Louisiana given the geographical proximity to a location with a clinic). However, that will only deter some women from traveling across state lines to procure an abortion. 
3. Abortion pills can act as a workaround. Mifeprex has been approved by the FDA since 2000, which can be used up to 70 days of gestation. This is noteworthy considering that 79.3 percent of abortions happen nine weeks or earlier, according to 2019 CDC data. Some states might crack down on this medication crossing state lines, but it is possible that the enforcement prove to be too difficult to enact. 
4. Most states will have legal abortion, which is to say that those living in states with greater restrictions plausibly still have access. 
5. States that are likely to have abortion restrictions if Roe v. Wade is reversed already have low abortion rates in comparison to other states. 

Will abortion rates go down as a result? Almost certainly. After all, bans tend to lead to less consumption of goods and services. However, it is not looking to be the dire number that a number of abortion activists were anticipating. 

  

What Will Be the Economic and Health Impacts?

I do not want to reduce abortion down to an economic issue. There are also ethical and philosophical components to the debate that we need to consider (see my 2019 analysis on those components here). At the same time, determining the economic impacts is not so simple, even though some have tried a cost-benefit analysis (e.g., Nelson, 1993). Not only does it cost to carry a child to term, but it also costs money to raise a child. As such, it should not be a surprise that not having access to an abortion would increase a household's costs. For some, that can translate into considerable financial distress (Miller et al., 2020), which can cause other economic and health issues. This potential for financial distress is pronounced by the fact that nearly half of women who procure an abortion are below the federal poverty line (Guttmacher Institute). At the same time, one has to consider what the expected earnings that would have been accrued if the fetus came to term, became an adult working in the labor market, and the extent to which said life would have contributed to society. 

That segues into the value of life, which is an economic value used to determine the benefit of avoiding a fatality. If the fetus is to have some or any ethical consideration or legal protection, there would need to a value of life applied to the fetus. It depends on what value of life you want to use. For a human being that is born, it depends on who is conducting the valuation and how much the value of life is for a fetus. If the fetus is to viewed as more than a clump of cells and should have partial or full legal protection and ethical consideration, then an abortion is decidedly unhealthy for a fetus since abortion means destroying the fetus' life. It would help tilt the argument in favor of the anti-abortion position. 

If a fetus is to have an economic value of zero or a very low value of life, that would change the calculus dramatically in favor of a pro-abortion position. It would also make the arguments for the women's health, labor force participation, and educational attainment even stronger. Given that 59 percent of those who seek abortions are already mothers, one could argue that forcing the mother to carry could put financial or emotional strain on the children and families they already have. 

I also have concerns about what driving abortions to the underground market would do. When a good a service gets relegated to the black, market, it creates more problems than it solves, whether we are talking about marijuana, prostitution, or donating one's own organs. Pro-abortion activists using depiction that we would return to pre-Roe conditions vis-à-vis coat-hanger abortions is inaccurate and unhelpful, much like it is counterproductive when anti-abortion activists use images of aborted fetuses to make their point. The pro-abortion Guttmacher Institute shows that 54 percent of abortions are done in pill form, a number that is expected to grow.  If a woman can cross state lines to procure a surgical abortion or some Mifeprex, the safety concerns are nowhere near what abortion advocates are making them out to be. 

Another cost that concerns me has to do with enforcement. According to Mayo Clinic, 10 to 20 percent of pregnancies end in miscarriage (also known as spontaneous abortion). If a state is going to take the criminalization of abortion that seriously, does that mean the police force is going to investigate miscarriages as if it were a homicide case? There are questions about how implementation would end up. That does not mean there should not be an effort. We do not say that we should not enforce laws pertaining to murder, sexual assault, fraud, or arson simply because there are enforcement costs and challenges. On the other hand, given the nature of miscarriages, it would arguably be more arduous to prove whether or not it was a bona fide miscarriage or if the abortion were induced by medicine. 

Will Reversing Roe v. Wade Upend Democracy and Privacy Rights? 

"It's the end of the world (or at least, democracy) as we know it." That is the argument I have seen on the Left lately in response to the possible reversal of Roe v. Wade. Washington Post calls it "at odds at democracy." The L.A. Times referred to it as "an emphatic and damaging expression of minority rule." Removing Roe v. Wade is not going to be an end to democracy, but I have a few responses:

• It is not as if the United States were this backwards, authoritarian regime until 1973 and Roe v. Wade magically turned this country into a democratic haven. The United States was functioning as a representative republic prior to Roe v. Wade becoming law. 
• 46 states needed to change their abortion laws as a result of Roe v. Wade. This would imply that these 46 states had more restrictive abortion laws pre-Roe given the permissiveness of Roe. If almost every state had abortion restrictions on some level that were less permissive than what Roe allows, that means the expansion of abortion access allowed by Roe circumvented democratic will.
• The pro-abortion crowd reacts as if reversing Supreme Court decisions is unprecedented or radical. It is not. There have been over 200 instances in which the Supreme Court overturned a previous ruling, most notably when Brown v. Board of Education overturned Plessy v. Ferguson. 
• Far from being minority rule, it would be the first time in about a half-century in which popular majorities determine the scope of abortion policy instead of it being determined by unelected federal judges. Even President Biden acknowledged this by saying that he is not "prepared to leave that [the abortion debate] to the whims of the public at the moment in local areas." In other words, Biden's issue is that such a ruling would mean too much democracy, not too little. 
• While a majority of Americans believe that Roe v. Wade should not be overturned (Politico), a recent poll from YouGov/Economist shows that 64 percent of Americans are okay with abortion being banned after 15 weeks. This 15-week mark also happens to be the line that the Mississippi legislature draws in the Dobbs case. The Dobbs case de facto has majority support from Americans, so how is enforcing a law that a sizable majority is fine with an assault on democracy? 
• Yes, the Republicans played procedural hardball to get a majority of Justices on the Supreme Court that were nominated during Republican presidencies. But if you are going to argue "structural bias in favor of the Republicans," would you not want that to be at the state level instead a more centralized decision-making process dictated by the Republicans?  This is what happens when you give political institutions too much power, but I digress. Additionally, state officials are more responsive to constituents' needs. Referenda, elections for judgeships and governors, not to mention Congressmen, would make the process more democratic. 

Then there are those who think removing Roe v. Wade will go beyond abortion and affect other rights, particularly gay rights. In addition to such an argument violating the slippery slope fallacy, there are a few reasons to assume why this would not spill over into gay rights territory. 

1. Support for same-sex marriage is at a high of 70 percent (Gallup). Unlike Roe v. Wade, the fight for gay rights was much more settled and less divisive in society before the Supreme Court caught up and established the right of same-sex marriage vis-à-vis Obergefell v. Hodges. Gay rights have been established as a societal norm and overturning them would contribute to the erosion of the Court's legitimacy. 
2. Justices Gorsuch and Roberts ruled in favor of the Bostock v. Clayton County, which expanded employment discrimination protections to gay and transgender workers. If the "conservative majority" were hellbent on taking away LGBT rights, they would not have expanded LGBT rights. If anything, they would have attempted to take them away, which leads to my next two points.....
3. The Supreme Court's "conservative majority" had two opportunities to strike down Obergefell v. Hodges (i.e., Pavan v. Smith, 2017; Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018) and it chose not to do so. 
4. Justice Thomas and Alito denied the certiorari in Kim Davis v. David Ermold, which would imply that the two most conservative Justices do not feel like going after gay rights either. 
5. Don't forget about stare decisis, which is the legal doctrine that allows precedent to carry considerable weight in current and future rulings. 
6. Finally, Alito mentions in the leaked draft opinion (p. 5) for Dobbs that abortion is different from intimate sexual relations, contraception, and marriage "because it destroys what those decisions [Roe and Casey] called fetal life," something that was even acknowledged by the plurality in the Casey case (p. 62). Alito emphatically states that "To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion (ibid.)."

If it is not about upending democracy or other de jure rights already previously acknowledged by the Supreme Court, then what is going on? The Wall Street Journal gives a reply: "The Supreme Court's job is to say what the law is, not to be a body of philosopher kings to impose progressive outcomes." The objection to the draft opinion is not about preserving democratic institutions or making sure the people have their say, as previously illustrated. This is an adverse reaction to the fact that many on the Left think that democracy only happens when the outcomes are ones that they favor. That is not how the democratic process works in the United States. I brought this up with the mask mandates, which is that an independent judiciary is necessary to determine what is legal, not what is ethically and morally palatable per se. This leads to a reason I am happy to see the anticipated reversal of Roe v. Wade. Independent of any moral or policy considerations, the constitutional case for Roe v. Wade is unconvincing: 

• It is hard to imagine that the authors of the 14th Amendment thought that the Amendment referred to abortion when three out of four states banned abortion in 1868. There is no historical basis that "liberty" under the 14th Amendment covers pre-quickening abortion. 
• Justice Blackmun, who authored the Roe v. Wade opinion, did not find words or the history of the Constitution, nor did he quote a provision in the Constitution that allows for abortion legalization. 
• There was not even a pretense to examine the intent of the drafters of the Fourteenth Amendment to see if abortion access were implicitly protected by any constitutional provision. In other words, if people want Roe to become national law, pass it through Congress. If abortion activists cannot do that, they need to fight for it on the state level. 
• Justice Ruth Bader Ginsburg, who was a major advocate of abortion access, thought that Roe's "doctoral limbs were too swiftly shaped, [as] experience teaches, may prove unstable." As Ginsburg illustrates, you can believe that abortion access should be [all but] unfettered and that Roe does not provide constitutional basis for said access. From Ginsburg's point of view, the better approach would have been to argue for abortion access using equal protection principles. 
• John Hart Ely, who taught at Yale University, was one of the most oft-cited constitutional law experts of his time. He was in favor of abortion access, but thought that Roe was a bad decision and was not truly constitutional law (Ely, 1973). Ely said that "this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure." In other words, the Burger Court pulled the "right to an abortion" out of thin air. 

For more information on the legal arguments that are being presented to the Supreme Court, you can read the amicus briefs that were filed for the Dobbs v. Jackson Women's Health Organization case here.

Postscript

What would happen if Roe v. Wade ends up being reversed? Not the end of the world. The question of the legality of abortion will go back to the states, just as it was before 1973. Yes, there will be a decline in abortion access because that is a common occurrence when one bans or greatly restricts access a good or service. That number is not projected to be as high as some abortion advocates might fear. There are tradeoffs regarding the economic and health components of the abortion debate. How you feel about the fetus or how you valuate the life of an unborn child will greatly determine whether or not you think the cost of greater abortion restrictions are worth it. As for some of the secondary effects, democracy is not going to end with the reversal of Roe v. Wade. If anything, both revoking a piece of slipshod constitutional law while making the process more democratic by returning it to the state level ought to improve the Court's legitimacy. Additionally, it does not look as if this reversal would likely affect other rights to privacy, particularly that of gay rights. One for thing is for certain: the abortion debate in the United States is far from over. If anything, this rematch is only getting started.