As President Donald Trump prepares to nominate another justice to the Supreme Court, right-wing media and abortion opponents have downplayed the likely impact of the court overturning Roe v. Wade, claiming those concerns are no big deal because abortion regulation would merely return to the states. This argument is self-serving and inaccurate. In a post-Roe world, almost half the states will undoubtedly ban abortion, many others will impose restrictions, and the anti-abortion movement apparatus will turn its full power on banning and restricting it everywhere.
Some right-wing media figures have been more open about the possibility that overturning Roe will lead to the end of legal abortion access in the country. But others are returning to the same strategy right-wing media figures -- and Trump himself -- adopted during the confirmation process for Justice Brett Kavanaugh by downplaying the end of Roe. Though the threat of Kavanaugh’s confirmation to Roe did not immediately manifest due to Chief Justice John Roberts joining the liberals in the Louisiana abortion case earlier this year, Roberts still “expressed serious doubts about protecting abortion in future cases” in the decision. Another Trump-appointed justice solidifies the threat -- already Republicans in Texas are looking into passing an unconstitutional six-week abortion ban “with a potentially more-favorable high court makeup on the way.”
While the present strategy appears to involve conservatives claiming Democrats and pro-choice advocates are fearmongering about the end of Roe, it also implicitly acknowledges the reality of the situation: the majority of Americans overwhelmingly support Roe and don’t want it overturned. If it weren't so popular, abortion opponents wouldn't be forced to mask their intentions and hide behind the talking point that it won't be overturned.
In reality, sending abortion regulation “back to the states” would functionally outlaw abortion access across large parts of the country. As ABC News’ Alexandra Svokos wrote, “According to the Center for Reproductive Right's “What if Roe Fell?” project, abortion would remain legal in 21 states and would likely be prohibited in 24 states and three territories” if Roe was overturned. That’s because some states have “trigger” laws that would automatically ban abortion if Roe is overturned, some have abortion bans on the books that were enacted pre-Roe and could come back into force, and some have codified protections for abortion rights if Roe is overturned.
In addition, some states have attempted to enact six-week, 12-week, 15-week, or 20-week bans on abortion in violation of the time frame established by Roe and subsequent case law, and those bans could become more salient in a post-Roe world. (In most cases, a court has blocked the implementation of those attempted bans.)
Numerous right-wing media figures have attempted to downplay concerns on the impact of losing Roe, arguing that regulation will simply return to the states:
- Turning Point USA’s politics podcast host Alex Clark:
- Washington Examiner columnist Timothy Carney wrote about polling showing that most Americans do not want Roe overturned:
That survey, however, also found that a majority don’t want Roe overturned. How can that be? Most likely, because a huge portion of the population believes that overturning Roe would outlaw all abortion. They don’t realize that overturning Roe would return most abortion to being a state issue.
- On the September 21 edition of Premiere Radio's The Sean Hannity Show, host Sean Hannity said that abortion regulation “would go back to the states, but that “you’d be hard-pressed to find many states, if any at all, … that would stop abortion being legal in America.” The next day, Hannity outrageously claimed, “I don't see a single state that would eliminate abortion.”
- The National Republican Senatorial Committee’s Matt Whitlock:
- On Fox News’ America’s Newsroom, The Wall Street Journal’s Bill McGurn claimed, “Even if Roe v. Wade were overturned, which I do not think it will be, at least in its entirety, you know abortion would still be legal and up to the states. So, I don't think we're gonna see any cataclysmic changes” with the Supreme Court.
- The Daily Wire’s Matt Walsh:
- In a segment, Sinclair Broadcast Group national correspondent Kristine Frazao interviewed CATO Institute’s Trevor Burrus, who downplayed the impact of Roe being overturned, saying that “it does not mean that in every state you would then have abortion be illegal.”
- The Resurgent’s Erick Erickson:
- National Review’s David Harsanyi wrote, “Overturning Roe v. Wade wouldn’t mean the ‘outlawing’ of abortion. This is a popular misconception. If Roe, a decision whose legal reasoning has been widely criticized, was overturned, states would take up the issue in their legislatures and their state constitutions, just like almost every other political issue.”
Unfortunately, some mainstream media outlets are falling for this tactic and failing to push back on this right-wing media talking point or provide relevant context:
- In a one-sided profile of the anti-abortion movement’s hope for the end of abortion, The Atlantic’s Emma Green’s wrote, “The almost universally shared goal of the anti-abortion movement is to see Roe overturned so that the question of abortion can return to the states, where voters can directly influence whether their legislatures permit or regulate the procedure.” Green did not address the lack of access many will face across the country and the impact of such a goal.
- On CBS This Morning, Sen. Ted Cruz (R-TX) said, “Here’s a point very few people understand: If Roe v. Wade were reversed, the consequence would not outlaw abortion. It would simply return to the way it was for most of the history of our country, which means it would be decided by the state legislatures.” None of the hosts countered or questioned the claim.