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Friday’s landmark decision by the Supreme Court to overturn Roe v. Wade has awakened a political and media earthquake. The decision was met by cheers by pro-life activists and GOP politicians, while Democrats and pro-abortion activists have expressed a universal outrage at the decision. However, much of the debate over the decision has been littered with misconceptions or lack of context, here we take a look at the myths and realities of overturning Roe v. Wade
Some of the common misconceptions and lies over Roe are centered on the legal status of abortion in the U.S. Others have an ill-conceived understanding of how U.S. abortion laws compare to the rest of the world. Similarly, others speculate on what the ruling will mean in the future, and a few are based on the public’s opinion over Roe.
As the debate over abortion in the United States will continue and is likely to intensify in the following months and years, it is critical that the public discussion over this highly sensitive issue is based on facts rather than on partisan spins or narratives
Claim #1: Overturning Roe Does Not Make Abortion Illegal In All States
One of the most common misconceptions over the ruling is that the Supreme Court illegalized abortions in the entire country in a single ruling. It is common to read headlines in many media outlets describing how the Court has “ended the constitutional right to abortion” throughout the country. While this is not technically a lie, the title lacks context and could easily be misinterpreted by the readers as a blanket decision by the Court to ban abortions nationwide, while the reality is more nuanced than that.
Other outlets have gone even further, with a Los Angeles Times article in Spanish explaining the ruling saying that the decision would make abortion “illegal for the women of the nation.” A clear lie that is then immediately contradicted in the same article, admitting that individual states will be able to decide abortion’s legal status by themselves.
The Court’s decision to overturn Roe does not make it illegal to conduct abortions at a national level. When it is said that the Court has eliminated the constitutional right for abortion what they really are saying is that there is nothing in the Constitution that can be interpreted as a federal right on abortions, leaving the issues entirely up to the states.
The overturn of Roe (a ruling that even Ruth Bader Ginsburg wasn’t a fan of) is a reversal and it does not create a new federal jurisprudence to replace Roe. It overrules the 1973 decision and leaves the national abortion jurisprudence in the same legal framework as it had existed before. The Court also overruled Casey, the court case that affirmed Roe in the 1990s and that banned abortions before fetal viability, roughly accepted to be between the fifth and sixth month of pregnancy.
It is true that there will be states where abortion will be either banned in most cases or limited in comparison to what was allowed under Roe and Casey, which mandated abortion until approximately the end of the second trimester. Numerous states, including two of the most populous of the country (California and New York), will still have laws on the books allowing abortions.
Claim 2: Abortion in the U.S. Is More Restrictive Than In Other Developed Democracies
The overturn of Roe was condemned by numerous European and Western politicians. French President Emmanuel Macron tweeted and expressed his “solidarity” to all the women whose “freedoms have been compromised by the U.S. Supreme Court.” Similarly, the European Parliament condemned the Supreme Court’s decision a few days after it was issued.
As flocks of Western politicians have gone out of their way to comment on the SCOTUS decision, it would be understandable if the public thought that abortion is now more restricted in the U.S. than in Europe. The reality, as usual, is far more complicated than that.
Europe, in general, has more restrictive laws on abortion than the United States. Even before Roe was overturned, a majority of European countries had either banned or restricted abortions well before the viability threshold that was common in the U.S. Even now that Roe is overturned, a majority of states in America will still have laws that are far more permissible with abortions than in Europe.
For example, the law recently passed in Florida is more permissible than that of Macron’s France or Scholz’s Germany. While Florida will allow abortions before 15 weeks, in France and Germany abortions are only legal on request until the 14th week. In countries like Norway, the poster child of many progressive politicians, abortion is even more restricted than in DeSantis’ Florida as abortion is only permitted on request up until the 12th week, even more, restrictive than the Mississippi abortion law that was the center of the Dobbs case that overrule Roe.
Claim 3: Same-Sex Marriage and Contraception Are on the Chopping Block
Some of the arguments used to decry Dobbs is that the ruling opens the gates for the Court to overturn Obergefell and Griswold, the cases that found gay marriage constitutionally protected and banned governmental restrictions on birth control methods, respectively. This claim has some basis in Friday’s ruling, altough is a more speculative point rather than a statement of fact.
The basis for the argument was explained by Justice Clarence Thomas himself, who issued a concurrent opinion on Friday. Thomas argued that the Court should evaluate the constitutionality of Obergefell and Griswold as he questioned the doctrine of “substantive due process” that was used by the Court to justify both cases and that the bench should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Thomas argues that the substantive due process doctrine “has harmed our country in many ways (…) we should eliminate it from our jurisprudence at the earliest opportunity.”
While Thomas is clearly an important judicial influence on the Court, he is the only Justice on the bench who raised the possibility of revisiting Obergefell. The actual opinion of the Court, written by Justice Alito, is clearly established that the present ruling should not be used as a way to cast doubts on the precedents on Obergefell and other rulings, the majority opinion clearly states that the rights invoked under those rulings are different from those espoused on Roe because they do not involve “potential life” as Roe and Casey do.
Hence, while it is true that Justice Thomas did make a call to revisit the rulings that made gay marriage constitutional, that is a minority opinion on the Court and the Dobbs ruling actually contradicts that argument.
Claim 4: Abortion Is Widely Supported by Americans
Another of the claims that are commonly heard is that the American people are widely supportive of Roe and support more permissive abortion legislation than not. Out of all the claims here, this is the one that has a stronger basis on reality, although there are some important gray areas.
A majority of Americans have consistently said that they do not agree with the overturning of Roe. The latest Gallup polls show that 58% of respondents think that the 1973 decision should not be overturned, and 63% think that the decision will be a bad thing for the country. Additionally, there has been a considerable public opinion swing in favor of the pro-abortion movement, as 55% of Americans classify themselves as “pro-choice”, an increase from the 49% who said the same thing in 2021.
While a majority of Americans say they don’t want Roe to be overturned, there are some interesting divergences in the numbers when they are asked more specific questions about the conditions when abortion should be legal or not.
For instance, the same Gallup poll shows that only 35% of respondents think that abortions should be legal under any circumstances, while 32% say it should be legal under only a few. A majority of respondents (55%) also say that abortions should be illegal between the third and sixth month of the pregnancy and an even higher share (71%) say it should be illegal in the third trimester of the pregnancy.
These numbers are quite interesting, as the decisions the Court overruled (Roe and Casey) legalized all abortions up until fetal viability, which was broadly defined to occur between the 5th and 6th month of the pregnancy. Hence, while most people said they did not agree with the overruling of Roe, they held policy positions that were vastly different from those held by Roe.
Daniel is a Political Science and Economics student from the University of South Florida. He worked as a congressional intern to Rep. Gus Bilirakis (FL-12) from January to May 2020. He also is the head of international analysis at Politiks // Daniel es un estudiante de Cs Políticas y Economía en la Universidad del Sur de la Florida. Trabajo como pasante legislativo para el Representate Gus Bilirakis (FL-12) desde enero hasta mayo del 2020. Daniel también es el jefe de análisis internacional de Politiks.