No, Overturning Roe Does Not Ban Birth Control Or Plan B
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Roe v. Wade, the landmark 1973 Supreme Court case that made abortion legal across the U.S. for the past five decades, has been overturned, and abortion is no longer protected at the federal level as of June 24. Instead, individual states will decide whether abortion is legal within their state boundaries.
On Friday, the court reversed its nearly 50-year-old decision after ruling on a new court case, Dobbs v. Jackson Women’s Health Organization, which dealt with Mississippi's 15-week abortion ban. The Dobbs case was really, at its core, a challenge to the initial Roe v. Wade decision made back in 1973.
On Friday, Justice Samuel Alito wrote in his majority opinion that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan released a joint dissenting opinion that strongly criticized the move. “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” they wrote.
The country has been bracing for this decision since a draft opinion from the Supreme Court, published by Politico in early May, suggested that the court planned to overturn the case. The draft opinion, which was written by conservative Justice Alito and reflects the majority opinion of the court, was written in reference to Dobbs v. Jackson Women’s Health Organization.
And since the draft opinion was leaked back in early May, some states have moved to further restrict access to abortion. Since January, 541 restriction measures have been introduced in 42 states, and 42 of those measures have been enacted in 11 of those states, per the Guttmacher Institute.
On May 26th, Oklahoma's governor signed the strictest law in the country, banning abortion starting at fertilization with very few exceptions, according to NPR. It also allows other citizens to report anyone who "aids or abets" an abortion, according to Insider.
Meet the experts: Mary Ziegler is a professor of law at Florida State University, and author of Abortion and the Law in America: Roe v. Wade to the Present. Stephanie Toti is senior counsel and the project director at The Lawyering Project.
It feels like everyone is talking about Roe v. Wade right now, and it’s understandable to have questions about what overturning the case means for the country and for people's access to abortion. So, here’s everything to know so far.
What is Roe v. Wade and why does it matter?
Roe v. Wade is a landmark Supreme Court case from 1973 that determined that the U.S. Constitution protects a woman’s right to an abortion before her fetus is viable, per Cornell Law School.
The case started with a woman named Norma McCorvey, who took on the legal pseudonym "Jane Roe." McCorvey became pregnant in 1969 with her third child and wanted an abortion. But she lived in Texas, where abortions were illegal except in rare circumstances.
The court ultimately decided that during the first trimester, the decision to terminate a pregnancy was a woman’s choice on the basis that it constituted a woman's "right to privacy." And as such, it was unconstitutional to ban women's access to abortion in individual states.
With this decision from the Supreme Court, states could still “regulate,” but not outlaw abortions in the interest of the mother’s health. Beyond the first trimester, the court ruled that states could regulate or outlaw abortions except when necessary to preserve the life or health of the mother.
With Roe v. Wade overturned, the Supreme Court now puts the decision back into the states' hands. More on that in a second.
Why was Roe v. Wade overturned?
The Roe decision has been repeatedly challenged for nearly a half-century, but the current conservative makeup of the Supreme Court made it more likely that the case would actually be overturned this year.
Last year, the Supreme Court agreed to hear a challenge to Mississippi’s 15-week abortion ban with the Dobbs case, which also required the court to re-analyze the decision in Roe v. Wade, CNN explains. This decision ultimately affects the legality of abortion in the U.S. and now leaves it up to states to decide if and when abortions are legal within state boundaries.
"The challenge to Mississippi's law gave the Court an opportunity to reverse Roe," says Mary Ziegler, a professor of law at Florida State University, and author of Abortion and the Law in America: Roe v. Wade to the Present. "There would be any number of other options to reverse Roe. This was just the one that came to the Court the most quickly."
At the same time, some states have put policies in place that increases abortion access for constituents, while others have made things more restrictive.
Overall, 26 states, or more than half of the country, have laws that could restrict access to abortion now that Roe is overturned. And just 16 plus the District of Columbia have laws in place to protect that right, despite Roe being overturned.
Earlier in May, Ziegler explained that she "would expect about half of the states to criminalize all abortions." That will happen very quickly—in a matter of weeks or months.
Which states will ban abortion or have abortion trigger laws in place?
Thirteen states have passed so-called “trigger laws” that will ban abortion within 30 days now that Roe v. Wade is overturned, according to the Guttmacher Institute and CNN. Those states include:
Arkansas
Idaho
Kentucky
Louisiana
Mississippi
Missouri
North Dakota
Oklahoma
South Dakota
Tennessee
Texas
Utah
Wyoming
In some of these states, laws took immediate effect after Roe was struck down. However, judges in a few states have temporarily blocked the trigger laws.
In Louisiana, abortion providers filed a lawsuit claiming the law was "constitutionally vague," per the Washington Post. And in Utah, a judge blocked the state's 2020 trigger law for the next two weeks after the local American Civil Liberties Union and Planned Parenthood asked for a temporary injunction, Fox13 reported.
"The immediate effects that will occur outweigh any policy interest of the state in stopping abortions immediately," the judge said, per Fox13. "Doctors here are threatened with felonies. Affected women are deprived of safe, local medical treatments to terminate pregnancies."
At least 9 states have pre-Roe abortion bans that have been going unenforced because they were previously "unconstitutional."
This is no longer the case.
These states already had restrictions in place, but Roe v. Wade rendered them unconstitutional, the Guttmacher Institute explains. The restrictions had been blocked by courts, but now they could be brought back under a court order since Roe has been overturned.
Alabama
Arizona
Arkansas
Michigan
Mississippi
Oklahoma
Texas
West Virginia
Wisconsin
The Supreme Court also has not suspended Texas’ six-week abortion ban, which offers a $10,000 reward to anyone who reports people suspected of seeking, obtaining, helping with, or performing abortions.
16 states and D.C. are mostly unaffected.
Sixteen states have put their own laws in place to protect the right to end a pregnancy, and some lawmakers from these states have also vowed to protect abortion rights.
"Our daughters, sisters, mothers, and grandmothers will not be silenced. The world is about to hear their fury," California Governor Gavin Newsom said on Twitter. "California will not sit back. We are going to fight like hell."
The states mostly unaffected by the decision include:
California
Colorado
Connecticut
Delaware
District of Columbia
Hawaii
Illinois
Maine
Maryland
Massachusetts
Nevada
New Jersey
New York
Oregon
Rhode Island
Vermont
Washington
How would people access abortions in these states if a ban goes into effect?
If someone wants to obtain an abortion and lives in a state where they’re illegal or very restricted, they will still have options. But abortion providers will be harder to find and more expensive.
Some options include traveling to a state where abortions are still legal or ordering pills from outside the country, says Stephanie Toti, senior counsel and project director at The Lawyering Project. "Folks who have the resources to travel will be forced to travel out of state at great expense and inconvenience," she says. "But people who don't have the option to travel will be forced to carry pregnancies to term."
Ordering medication online is tricky, Toti says. "Those services exist and will continue to exist but, in any state that bans abortion, those services will also be illegal," she says. "Folks trying to access abortion in that way will face potential criminal prosecution."
Clinics in states neighboring other states with abortion bans will also likely see greater demand and limited capacity to meet the needs of those seeking help, according to The New York Times.
"In the short term, each state will decide its own policies," Ziegler says. "But there will be a push to criminalize abortion nationwide through the Supreme Court or through Congress."
Is Plan B banned anywhere?
With all this turmoil surrounding abortion, some people have also been confused whether Plan B (an emergency contraception pill), similar morning-after pills, and even IUDs will also now be banned. The short answer? Not yet.
While no states have officially banned morning-after pills at this time, some lawmakers are considering putting bans in place.
For instance, in Idaho, a lawmaker said he was interested in holding hearings regarding laws that would ban emergency contraception, according to the Idaho Statesman.
Does overturning Roe v. Wade affect birth control access?
No, birth control is not directly affected by the decision, and it's not currently banned in any states. However, legal analysts say that the case could open up the door for more restrictions.
Why? Well, some conservative lawmakers believe that life begins at fertilization, and they have questioned whether birth control methods that prevent implantation of a fertilized egg should be considered "abortive." (FYI: neither Plan B nor birth control constitute an abortion, Women's Health experts have explained).
However, lawmakers would have to create separate legislation to actually ban certain forms of birth control.
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