What’s next for national abortion rights? ‘A giant legal experiment,’ expert says

In a landmark ruling on Friday, June 24, the U.S. Supreme Court voted to overturn Roe v. Wade, a 1973 court ruling that established abortion as a constitutional right. The court’s decision in the case Dobbs v. Jackson Women’s Health Organization ended federal constitutional protections on abortion.

What’s next for abortion rights on the federal level? Can a woman’s right to choose be federally protected? McClatchy News spoke to experts to find out.

The legislative branch: What’s next for abortion rights in Congress?

Congress can override Supreme Court decisions in two ways: passing legislation or amending the Constitution. Congress has done this in several notable instances pertaining to the 13th Amendment, the 14th Amendment and the Americans with Disabilities Act.

Now, “Congress could pass a bill legalizing abortion,” Kevin J. O’Brien, a trial lawyer and former assistant U.S. attorney for the Department of Justice, told McClatchy News. This would give people “a statutory right to an abortion.”

One such bill, the Women’s Health Protection Act, failed to pass the Senate when brought to a vote earlier this year.

Both O’Brien and Hesha Abrams, an attorney and mediator who also spoke to McClatchy News, doubted the likelihood of such legislation passing anytime soon, especially with the upcoming midterm elections.

“Nothing is gonna happen in terms of federal legislation until after midterm elections,” Abrams said. “Some people will introduce bills, but everything will get stalled.”

“If the Democrats get control of Congress, they’re gonna pass a whole lot of things,” Abrams said. “If the Democrats can’t get control of Congress, then you’re not gonna pass any federal legislation that is going to assist a woman’s right to choose, but you probably won’t get legislation statutorily codifying what the Supreme Court just did,” unless “there’s a decisive power change in the midterm elections. The midterm elections are absolutely critical now.”

The executive branch: What’s next for abortion rights from the president?

As for what’s within the power of the president, experts say President Joe Biden is limited when it comes to overriding Supreme Court decisions.

“The executive branch is very limited,” Abrams said. The president “can do executive orders, but he can’t overturn the Supreme Court.”

O’Brien agreed, saying, “I don’t think there’s any order he could issue — that would survive a constitutional challenge — that would overturn this decision today.”

In his address Friday, Biden urged Congress to move to codify abortion rights, saying “no executive action from the president can do that.”

However, he said his administration would, “to the fullest extent possible,” ensure people’s access to abortion medications and contraceptives as well as protect individuals’ rights to travel across states for an abortion.

Abrams said the president “might be able to do things on federal programs, Medicaid, Medicare, Social Security, federal disability.” This is because “there’s a historical precedent” from previous Republican administrations that prevented federal funds from going toward health care providers that performed abortion, “regardless of the stage,” Abrams explained.

Additionally, Abrams said other regulatory agencies might begin “exploring how they can issue administrative rules to help and support” abortion access, such as “recharacterizing the termination of a pregnancy.”

The judicial branch: What’s next for abortion rights in the Supreme Court?

After Friday’s ruling, it’s unlikely the status of abortion rights will change again through judicial order anytime soon.

However, future political developments could seek to “change the composition of the court,” O’Brien explained, “to find people for the court who are more sympathetic to a woman’s right to choose, and hope to build a majority on the court that will neutralize or take away or narrow what happened today.”

Alternatively, O’Brien noted there may be increased efforts to “hem things in a little bit” on the Supreme Court, potentially through “term limits, expanding the number of justices, better financial disclosure.”

“We are not limited to nine justices on the Supreme Court,” Abrams said. Congress has the power to determine the number of justices on the court. If Congress ever voted to increase this number, “then this issue gets completely revisited again with a different majority, and it could literally whipsaw and flip back,” she said. “But the only way that’s gonna happen is if there’s a decisive power change at the midterm elections.”

For now, “we still honor the supremacy of the Supreme Court when it comes to constitutional matters,” O’Brien said.

For that reason, Abrams said, “there’s no easy, quick answer, unfortunately. What’s going to happen is a giant legal experiment.”

Read for yourself: The U.S. Supreme Court decision that overturns Roe v. Wade

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