With the confirmation of Judge Brett M. Kavanaugh, the Supreme Court would have a conservative majority that would most likely sustain sharp restrictions on access to abortion in the United States.
But it is not clear that the court would take the drastic step of overruling Roe v. Wade, the landmark 1973 decision that guarantees a constitutional right to abortion. The court may instead opt for a more incremental strategy, upholding increasingly severe restrictions in much of the country but stopping short of saying that the Constitution has nothing to say about a right to abortion.
Assuming that there are five justices ready to limit abortion rights, how could that happen? Here are some of the possible scenarios, each of which entails a different degree of legal upheaval.
LIBERAL WING
CONSERVATIVE WING
Trump appointees
Very Unlikely
Less Likely
Most Likely
Nuclear Options
Overturn Roe v. Wade
Chip Away At Roe v. Wade
These are the most extreme, and therefore least likely, scenarios.
The Supreme Court could reverse the precedent, but it is not likely to take such a significant step in the short term.
The court is much more likely to allow states to impose new restrictions on abortion.
The court could rule that fetuses are persons protected by the Constitution.
The court could abolish the right to privacy by reversing the 1965 case Griswold v. Connecticut.
Under the 1992 case Planned Parenthood v. Casey, states may not impose a substantial obstacle — or an “undue burden” — on a woman’s ability to get an abortion.
If Roe v. Wade were overturned, the right to privacy would remain but would no longer include the right to an abortion.
The court could interpret that standard more narrowly to allow states to impose increasingly severe limits.
Abortion = Murder
States could restrict or ban abortion because it would no longer be a constitutional right.
Abortion is banned nationwide.
This would eliminate the legal foundation of the right to an abortion.
States would have more leeway to restrict abortion.
It would also endanger other privacy-based rights, like birth control and same-sex marriage.
States could restrict or ban abortion because it would no longer be a constitutional right.
Abortion rights stand, but access would most likely be restricted for many women in conservative states.
LIBERAL WING
CONSERVATIVE WING
Trump appointees
Very Unlikely
Less Likely
Most Likely
Nuclear Options
Overturn Roe v. Wade
Chip Away At Roe v. Wade
These are the most extreme, and therefore least likely, scenarios.
The Supreme Court could reverse the precedent, but it is not likely to take such a significant step in the short term.
The court is much more likely to allow states to impose new restrictions on abortion.
The court could rule that fetuses are persons protected by the Constitution.
The court could abolish the right to privacy by reversing the 1965 case Griswold v. Connecticut.
Under the 1992 case Planned Parenthood v. Casey, states may not impose a substantial obstacle — or an “undue burden” — on a woman’s ability to get an abortion.
If Roe v. Wade were overturned, the right to privacy would remain but would no longer include the right to an abortion.
The court could interpret that standard more narrowly to allow states to impose increasingly severe limits.
States could restrict or ban abortion because it would no longer be a constitutional right.
Abortion = Murder
Abortion is banned nationwide.
States would have more leeway to restrict abortion.
This would eliminate the legal foundation of the right to an abortion.
Abortion rights stand, but access would most likely be restricted for many women in conservative states.
It would also endanger other privacy-based rights, like birth control and same-sex marriage.
States could restrict or ban abortion because it would no longer be a constitutional right.
LIBERAL WING
CONSERVATIVE WING
Trump appointees
Very Unlikely
Less Likely
Most Likely
Nuclear
Options
Overturn
Roe v. Wade
Chip Away At Roe v. Wade
These are the most extreme, and therefore least likely, scenarios.
The Supreme Court could reverse the precedent, but it is not likely to take such a significant step in the short term.
The court is much more likely to allow states to impose new restrictions on abortion.
If Roe v. Wade were overturned, the right to privacy would remain but would no longer include the right to an abortion.
Under the 1992 case Planned Parenthood v. Casey, states may not impose a substantial obstacle — or an “undue burden” — on a woman’s ability to get an abortion.
The court could rule that fetuses are persons protected by the Constitution.
The court could abolish the right to privacy by reversing the 1965 case Griswold v. Connecticut.
Abortion = Murder
States could restrict or ban abortion because it would no longer be a constitutional right.
The court could interpret that standard more narrowly to allow states to impose increasingly severe limits.
Abortion is banned nationwide.
This would eliminate the legal foundation of the right to an abortion.
States would have more leeway to restrict abortion.
It would also endanger other privacy-based rights, like birth control and same-sex marriage.
States could restrict or ban abortion because it would no longer be a constitutional right.
Abortion rights stand, but access would most likely be restricted for many women in conservative states.
LIBERAL WING
CONSERVATIVE WING
Trump appointees
Nuclear
Options
Overturn
Roe v. Wade
Chip Away At Roe v. Wade
Very Unlikely
Less Likely
Most Likely
These are the most extreme, and therefore least likely, scenarios.
The Supreme Court could reverse the precedent, but it is not likely to take such a significant step in the short term.
The court is much more likely to allow states to impose new restrictions on abortion.
The court could rule that fetuses are persons protected by the Constitution.
The court could abolish the right to privacy by reversing the 1965 case Griswold v. Connecticut.
If Roe v. Wade were overturned, the right to privacy would remain but would no longer include the right to an abortion.
Abortion = Murder
States could restrict or ban abortion because it would no longer be a constitutional right.
Abortion is banned nationwide.
This would eliminate the legal foundation of the right to an abortion.
It would also endanger other privacy-based rights, like birth control and same-sex marriage.
States could restrict or ban abortion because it would no longer be a constitutional right.
Under the 1992 case Planned Parenthood v. Casey, states may not impose a substantial obstacle — or an “undue burden” — on a woman’s ability to get an abortion.
The court could interpret that standard more narrowly to allow states to impose increasingly severe limits.
States would have more leeway to restrict abortion.
Abortion rights stand, but access would most likely be restricted for many women in conservative states.