if roe falls, congress can protect abortion access

Last Updated May 10, 2022

overview

The constitutional right to abortion was recognized by the Supreme Court almost 50 years ago in Roe v. Wade. The legal right to abortion has broad support among the majority of Americans. Yet access to reproductive healthcare remains uneven and fragmented, with states enacting 106 abortion restrictions in 2021, the highest number of restrictions passed in a single year since the Roe v. Wade decision.

Prior to Roe v. Wade—which affirmed the federal constitutional right to abortion in a 7-2 decision—only four states had repealed their anti-abortion statutes. Roe held that every pregnant person has the right to decide whether to continue their pregnancy prior to viability, known as the point at which a fetus can survive outside of the womb. Thirty years after this decision, in Planned Parenthood v. Casey, the Supreme Court carefully examined arguments to revisit this landmark precedent and upheld the central principle that states cannot prohibit abortion until viability, but acknowledged that states may impose a range of limitations throughout the duration of a pregnancy, as long as the restrictions did not impose an “undue burden” on access to abortion. While the Casey decision upheld the constitutionality of Roe, it opened the door for states to pass additional restrictions on abortion. 

The stakes around abortion have never been higher. While abortion remains legal, a shocking and unprecedented draft majority opinion from the Supreme Court that leaked on May 2, 2022 indicates the potential for the Court to overturn Roe. This decision could also set the stage for spurious attacks on other fundamental rights. With the constitutional right to abortion under threat in over half of states in the country, lawmakers can step up to provide clear federal protections for abortion.