WASHINGTON, D.C., USA — Editor's Note: The video in the player above is from a December 2021 report on Roe v. Wade and its pending SCOTUS challenge.
It's been nearly 50 years since the U.S. Supreme Court made its 1973 Roe v. Wade ruling that affirmed a woman's constitutional right to abortion.
But the decades-old decision — which continues to divide public opinion — now faces a new challenge.
The U.S. Supreme Court is expected to rule in June on Mississippi’s abortion law that bans nearly all abortions after 15 weeks. It's a timeline that falls before what the National Library of Medicine says is recognized as fetal viability in America.
The direct challenge of the landmark decision will go before a conservative majority SCOTUS and, based on the Court's decision, could be overruled.
Professor Robyn Powell, a visiting assistant professor at Stetson University College of Law, told 10 Tampa Bay in December 2021 the chances of that happening are likely.
"Roe v. Wade is really on the chopping block," Powell said at the time.
With a decision that could create a ripple effect across the country looming, you might be wondering what did Roe v. Wade establish in the first place?
The answer: It's probably more complex than you'd imagine.
Roe v. Wade was sparked by a woman in Texas named Norma L. McCorvey who sought an abortion but did not meet the state's requirement of only allowing the procedure in "cases of rape, incest, or to save the life of the mother."
"McCorvey was advised by her friends to falsely assert that she had been raped, but there was no police report to back up this claim. Instead, McCorvey attempted to have an illegal abortion, but she soon discovered that the authorities had shut down the facility," according to the National Constitution Center.
A lawsuit was brought on her behalf with the alias "Jane Roe," to protect her identity during the case, which claimed the law violated her constitutional rights.
Her case was eventually appealed to the U.S. Supreme Court in 1970 but arguments wouldn't be heard until 1971. The nation's highest court wanted to decide Younger v. Harris and United States v. Vuitch first.
Two years later, SCOTUS would hand down a decision that found the ban unconstitutional under the Fourteenth Amendment — but it's not as straightforward as that.
"Because the Court determined that abortions were within a woman’s 'zone of privacy,' it was therefore ruling that a woman had a fundamental right to the procedure. Although this right was fundamental, that did not mean that it could not be limited," the National Constitution Center wrote.
In an effort to balance the fundamental privacy right to abortion with government interests, the Court settled on a trimester framework of assessment.
"This solution determined when the right to abortion would be without limitations, and when the state’s interests would be compelling enough to outweigh the woman’s right to choose," the National Constitution Center wrote.
Here's how the breakdown works:
- During the first trimester: The decision on abortion is between a woman and her doctor.
- From the first trimester until fetal viability: The state's interest in the mother's health reaches a "compelling level." That means the state can regulate abortion if it “reasonably relates to the preservation and protection of maternal health.”
- Once fetal viability is reached: The state is able to protect its interest in "potential life" and, to that end, regulate abortion.
The trimester framework stood until 1992 when the U.S. Supreme Court adjusted it in Planned Parenthood of Southeastern Pennsylvania v. Casey. From this case came what is now known as the "undue burden" test.
Essentially, it's a marker to decipher if a mother's right to abortion, prior to viability, is being "unduly interfered with" by the state. But it doesn't stop the state from pursuing its interests as long as it doesn't impose an undue burden.
Cornell Law School offers the following analysis:
"An undue burden arises if the purpose or effect of the state restriction on abortion has placed a substantial obstacle on a someone seeking an abortion of a non-viable fetus. If the person seeking an abortion of a non-viable fetus can prove that they would endure an undue burden as a result of a state restriction on abortion, then the statute imposing an undue burden will be struck down either entirely or partially. On the other hand, the government could pursue its interest in protecting the health of the pregnant person as long as the government’s interest has a rational relation and does not impose an undue burden."
While Mississippi's pending abortion ban is in the spotlight, it's not alone
Guttmacher Institute, a research and policy organization, reports that 26 states are "certain or likely" to ban abortion if Roe v. Wade is overturned. The data set used by the organization "committed to advancing sexual and reproductive health and rights worldwide" is from October 2021.
Among those states is Florida. Lawmakers in the Sunshine State are currently considering a controversial bill to severely restrict abortions after 15 weeks.
The legislation bans abortion if a doctor finds the gestational age of the fetus is more than 15 weeks. Exceptions are allowed if the woman's life is considered to be in danger or if the fetus is considered to have a "fatal fetal abnormality."
As it stands, the bill does not allow exceptions for rape or incest, though Democratic lawmakers did propose amendments in an attempt to change this.
The bill would also currently require two physicians to certify "the termination of the pregnancy is necessary to save the pregnant woman’s life" or avert serious irreversible impairment.
In Florida, state statutes assert the first trimester carries through the 11th week of gestation, the second trimester then begins during the 12th week of gestation until the 23rd week of gestation and the third trimester is the period of time there on until birth.
That means Florida's bill falls during the second trimester and where Roe v. Wade decided the state's interest in a mother's health grows.
According to the Centers for Disease Control and Prevention's Abortion Surveillance System, 629,898 legal induced abortions were reported in the U.S. in 2019, which represents the most recent data available.
Of those, 92.7 percent were performed at or before 13 weeks. Meaning the sweeping majority of abortions in the U.S. wouldn't be affected by proposed 15-week bans.
The CDC reports a smaller number of 6.7 percent of abortions were performed between 14 to 20 weeks, with less than one percent of abortions occurring from 21 weeks and beyond.
An interesting note about Roe v. Wade: It was actually a seemingly-conservative court that originally decided Roe in a 7-2 vote that was not along party lines. Five justices appointed by Republican presidents originally sided with the majority opinion in Roe v. Wade, and one appointed by a Democrat even sided against the decision.
10 Tampa Bay's Andrea Chu contributed to this report.