The U.S. Supreme Court is considering striking down Roe v. Wade and allowing states to outlaw abortion, according to a leaked draft of a ruling published by Politico on Monday.
The court has a 6-3 conservative majority, and banning abortion has long been a main goal of the conservative movement. If the justices do overturn Roe, it would have several immediate effects on North Carolina.
Abortions wouldn’t immediately be entirely banned in the state. But a state law banning abortions after 20 weeks, with few exceptions, would likely be allowed to go into effect for the first time. That law was put on hold after passing and was later ruled unconstitutional, since it violated Roe. But if the Supreme Court strikes down Roe, the legal challenges against the North Carolina law could dissipate. How fast that would happen is an open question.
The Guttmacher Institute, a national group that supports abortion rights, did not include North Carolina in a 2021 report listing 26 states likely to immediately outlaw abortion if Roe is overturned.
“Notably, North Carolina has a pre-Roe abortion ban in place, but it is unclear if the state’s law would be implemented quickly,” the group wrote in an April update.
In December, Neil Siegel — a Duke University Law School professor who previously worked as a U.S. Senate staffer for several Supreme Court nominate hearings — told The News & Observer that the current justices on the Supreme Court were likely to overturn Roe v. Wade and a related ruling, Planned Parenthood v. Casey.
He also predicted that if it happened before the 2022 midterms, which are now six months away, it would be the main issue in the elections — and also possibly prompt Democrats, who currently control both the White House and Congress, to warm up to the idea of expanding the size of the court while they still hold power.
“If they do that now, I think it’s going to add fuel to the fire for the court-packing discussions,” Siegel told The N&O then. “And it’s going to dominate the midterm elections.”
Much of the focus would be on congressional races, specifically North Carolina’s U.S. Senate race to decide who will replace retiring Republican Sen. Richard Burr.
But a Supreme Court ruling to overturn Roe v. Wade would also throw the state legislative elections into a higher profile.
Uncertainties in 2022, 2024
All 170 state lawmakers are up for reelection this year, and Republicans currently have a majority — but not a veto-proof supermajority. So even though there are a few Democrats in the legislature who oppose abortion, Democratic Gov. Roy Cooper has been able to successfully veto recent bills that would’ve added additional abortion restrictions.
But if Republicans win a supermajority this November, or the governor’s office in 2024, then that would open up more options for the GOP to enact a total ban, not just a 20-week ban.
Looking ahead to 2024 on a national level, Siegel said a nationwide ban on abortion is also possible. The immediate effect of Roe v. Wade being overturned would mean that each state would set its own abortion rules. But a nationwide ban could be passed if Republicans win back the White House in 2024 and also control Congress, Siegel told The N&O.
“If you had unified Republican control in 2024, and they were willing to get rid of the filibuster to do it, you could have a national ban on abortion,” he said.
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