BELL COUNTY, Texas — In less than 24 hours, the nearly 50-year-old Roe v. Wade decision that created a foundation for the right to an abortion could be completely overturned. Texas A&M University-Central Texas Professor Jeffrey Dixon, who has been researching constitutional law for 20 years, said there are several directions the court could go once the final decision comes out.
Roe v. Wade essentially created law, and the concept of trimesters, to govern abortion rights. According to Oyez, they created a framework where a state may not regulate the abortion decision in the first trimester of pregnancy, a state may impose regulations related to maternal health in the second trimester, and a state may regulate abortions or prohibit them entirely in the third trimester.
"The trimester system was almost an invention of the court," Dixon said. "In order to protect this right that they determined existed."
Dixon expects the the supreme court decision on the fate of Roe v. Wade will be released Friday morning. He sees three possible outcome.
1. Roe v. Wade could be overturned and destroyed.
Dixon said the most likely scenario, based on the leaked draft opinion obtained by Politico, is the court will overturn Roe v. Wade entirely and return the ability to regulate abortion to the states and federal government. This would destroy the trimester system completely and allow state trigger laws to take effect.
Texas already passed H.B. 1280 which would ban abortions except when "in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced;"
This law would go into effect 30 days after Roe v. Wade was overturned according to the wording in H.B. 1280.
Dixon said he suspects at least 5 of the conservative judges currently on the court are in favor of this approach.
2. Roe v. Wade could be revised.
Dixon said Supreme Court Chief Justice John Roberts could be open to revising Roe v. Wade if he was able to get other justices on board.
"I can see John Roberts trying to put together a coalition to essentially avoid overruling Roe directly while still permitting more regulation of abortion than what Roe permitted," Dixon said.
The struggle, Dixon said, would be to for Roberts to get four other justices to agree with him. He said conservative-leaning and liberal-leaning judges have worked together before, though on less political subjects. He expects the court to be polarized ideologically in this case.
3. Roe v. Wade's framework could be re-written.
The Supreme Court was created to interpret law, and now make it, but both justices appointed by both Republicans and Democrats can still write opinions that create new rules for states to follow.
"Even conservative justices have been willing to create law when it is necessary or when they feel like it is necessary to do," Dixon said.
It's possible that the case requiring Roe v. Wade to be evaluated, which is called "Dobbs v. Jackson Women's Health Organization" could result in a significant re-wording of the ideas in Roe v. Wade. Going by the leaked opinion, however, this does seem the least likely.
The leaked opinion states," The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment."
Dixon said the court has not appeared to want to re-write a framework for abortion with a more conservative approach, though this is not impossible.
"I don't see much enthusiasm among the court members for that approach. Most of them want to either overturn it or preserve it, more or less, as it stands," Dixon said.