What If Roe v. Wade Was Never Decided?

The Actual History

On January 22, 1973, the United States Supreme Court issued its landmark 7-2 decision in Roe v. Wade, recognizing that the constitutional right to privacy extended to a woman's decision to have an abortion. The case originated in 1969 when Norma McCorvey (under the pseudonym "Jane Roe") challenged Texas laws that criminalized abortion except when necessary to save the mother's life. Her attorneys, Sarah Weddington and Linda Coffee, argued that these restrictive statutes violated a woman's constitutional rights.

The Supreme Court, led by Chief Justice Warren Burger, ultimately agreed. Justice Harry Blackmun authored the majority opinion, establishing a framework that divided pregnancy into three trimesters. During the first trimester, the decision to abort was left solely to the woman and her physician. In the second trimester, states could regulate abortion procedures in ways reasonably related to maternal health. In the third trimester, once the fetus reached viability, states could prohibit abortions except when necessary to preserve the life or health of the mother.

This trimester framework was later modified in Planned Parenthood v. Casey (1992), which replaced it with the "undue burden" standard while affirming Roe's essential holding that women had a constitutional right to abortion before fetal viability. For nearly five decades, Roe stood as precedent, though states continuously tested its boundaries with various restrictions.

Throughout these decades, abortion became one of the most divisive political issues in American society. The decision galvanized the pro-life movement, bringing together Catholics, evangelical Protestants, and conservative activists. It also mobilized pro-choice advocates who fought to protect and expand access to reproductive healthcare. Presidential candidates routinely faced questions about their positions on Roe and their intentions regarding future Supreme Court nominations.

By the early 21st century, the composition of the Supreme Court had shifted considerably. Presidents George W. Bush and Donald Trump appointed conservatives to the bench, creating a 6-3 conservative majority. In 2022, this new Court overturned Roe in Dobbs v. Jackson Women's Health Organization, ruling that the Constitution does not confer a right to abortion and returning the authority to regulate abortion to individual states.

The aftermath of Dobbs has been profound. Numerous states quickly enacted near-total abortion bans through "trigger laws" that had been designed to take effect if Roe was ever overturned. Other states moved to codify abortion protections in state law or constitutions. The result has been a patchwork of abortion access across the United States, with significant disparities based on geography and socioeconomic status.

This legal and political saga spanning five decades has profoundly shaped American politics, healthcare, and culture, influencing everything from Supreme Court nomination battles to state-level elections and creating one of the most enduring and passionate divides in American public life.

The Point of Divergence

What if Roe v. Wade was never decided by the Supreme Court? In this alternate timeline, we explore a scenario where the landmark case that federally protected abortion rights for nearly 50 years never reached a final decision, dramatically altering the trajectory of American law, politics, and society.

Several plausible divergences could have prevented Roe from becoming the watershed case we know today:

Scenario 1: The Case Never Reaches the Supreme Court
Norma McCorvey ("Jane Roe") might never have met attorneys Sarah Weddington and Linda Coffee, or they might have decided not to take her case. Alternatively, the Supreme Court could have declined to grant certiorari to hear the case, as it does with the vast majority of appeals. Without Roe, another case challenging abortion laws might have eventually reached the Court, but with potentially different facts, arguments, plaintiffs, or timing—all factors that could have led to a different outcome.

Scenario 2: A Procedural Dismissal
The Court might have dismissed Roe on procedural grounds. By the time the case reached the Supreme Court, McCorvey had already given birth and placed her child for adoption, potentially rendering the case moot. While the Court determined that the case fell under the "capable of repetition, yet evading review" exception to mootness, they could have ruled differently on this procedural question.

Scenario 3: A Different Court Composition
The timing of Roe coincided with significant changes in the Supreme Court's composition. Had President Nixon's appointments occurred in a different order, or had certain justices retired earlier or later, the Court that heard Roe might have had a different ideological balance. In our timeline, Justices Powell and Rehnquist joined the Court just weeks before Roe was argued in December 1971, and the case's decision was delayed until after the 1972 election.

For this alternate timeline, we'll explore a scenario where in early 1972, Chief Justice Warren Burger successfully convinces his colleagues that the case should be reheard with a full nine-justice bench (Justice Blackmun had been considering recusing himself due to his prior position as counsel for the Mayo Clinic). During this delay, Justice William O. Douglas suffers a debilitating stroke (which in our timeline occurred in 1974), forcing his retirement. President Nixon, seeing an opportunity to further influence the Court's direction, quickly nominates a conservative replacement who is confirmed before Roe can be reheard. With this altered Court composition, Roe either results in a deadlocked 4-4 decision (which would affirm the lower court ruling without setting national precedent) or is dismissed entirely, leaving abortion regulation firmly in the hands of individual states.

Immediate Aftermath

State-Level Legal Responses

Without a federal ruling establishing abortion as a constitutional right, the legal status of abortion would have remained primarily determined by state legislatures throughout the 1970s. The landscape would have been complex and rapidly evolving:

Continued Reform Movement: The pre-Roe momentum toward abortion law reform would have continued, though unevenly. By 1973 in our timeline, four states (New York, Alaska, Hawaii, and Washington) had already repealed their abortion laws completely, while 13 others had enacted substantial reforms based on the American Law Institute's (ALI) model that permitted abortion in cases of rape, incest, fetal abnormality, or danger to the woman's physical or mental health. This gradual state-by-state liberalization would have continued, but at a slower pace and with greater regional variation.

Conservative Backlash States: In states with strong religious influences, particularly in the South and parts of the Midwest, legislatures would likely have enacted more restrictive abortion laws in response to liberalization elsewhere. These states might have imposed waiting periods, parental consent requirements, and stricter medical regulations even for their limited exceptions.

Legal Uncertainty: The absence of Roe would have created significant legal uncertainty. State courts would have handled constitutional challenges to abortion restrictions based on state constitutions, resulting in a patchwork of differing interpretations across the country.

Political Realignment Without Roe

The absence of Roe would have significantly altered the political landscape of the late 1970s and 1980s:

Delayed Evangelical Political Mobilization: While the Catholic Church had long opposed abortion, evangelical Protestants were not initially unified on the issue. In our timeline, Roe served as a catalyst for bringing evangelicals into conservative politics. Without this federal ruling to rally against, the formation of the Religious Right as a coherent political force might have been delayed or taken a different form, possibly organizing around other social issues like school prayer or opposition to the Equal Rights Amendment.

Different Democratic-Republican Divide: The Democratic Party's identification with abortion rights and the Republican Party's opposition developed gradually after Roe. Without this decision, the parties might have maintained more diverse internal positions on abortion for much longer, with greater regional variation in both parties' stances well into the 1980s and beyond.

Alternative Supreme Court Battles: Without Roe as the key litmus test for judicial nominees, Supreme Court confirmation hearings during the late 1970s and 1980s would have focused on different issues. The 1987 defeat of Robert Bork's nomination might have hinged on other aspects of his judicial philosophy, changing the subsequent trajectory of the Court.

Medical and Public Health Consequences

The immediate public health landscape would have developed differently without a nationwide right to abortion:

Underground Networks: Organizations like the Jane Collective, which provided illegal but relatively safe abortions in Chicago before Roe, would have continued operating in states with strict prohibitions. These underground networks might have become more sophisticated and widespread, potentially developing into a coordinated national movement.

Interstate Travel: Women with financial means would have increasingly traveled to states with legal abortion, creating "abortion tourism" between states. Cities near state borders with differing laws would have become hubs for abortion services.

Medical Education: Medical schools in restrictive states would have limited or eliminated training in abortion procedures, creating geographical disparities in provider training that would persist for decades.

Mortality and Morbidity: Without legal access in many states, complications from unsafe abortions would have remained a significant public health issue in restrictive states, disproportionately affecting low-income women who couldn't afford to travel for legal procedures.

Social Movement Evolution

The feminist movement and reproductive rights advocacy would have evolved differently:

Decentralized Advocacy: Rather than focusing on federal courts and constitutional arguments, reproductive rights advocates would have developed state-specific strategies and organizations, leading to a more decentralized but potentially more grassroots movement.

International Influence: American activists might have drawn more inspiration from successful liberalization movements in other countries. The 1967 Abortion Act in the United Kingdom and Canada's 1969 reforms might have provided templates for state-level campaigns.

Different Coalition Building: Without the polarizing effect of Roe, reproductive rights advocates might have built broader coalitions focused on incremental reforms, potentially finding common ground with moderates on issues like contraception access, sex education, and support for pregnant women.

By the early 1980s, America would have featured an uneven landscape of abortion access, with some states having broadly legal abortion while others maintained criminal prohibitions with narrow exceptions. This geographical disparity would have profoundly shaped women's lives, medical practice, and political organizing in ways that would ripple through subsequent decades.

Long-term Impact

The Legal Landscape's Evolution

Without Roe as a central organizing principle, abortion law would have developed along dramatically different lines over the subsequent decades:

State Constitutional Jurisprudence: State supreme courts would have played a much more significant role in shaping abortion rights. States like California, Massachusetts, and New York likely would have recognized abortion rights under their state constitutions, creating influential precedents for other state courts. This would have produced a rich body of state-level constitutional jurisprudence on privacy and reproductive autonomy, potentially influencing other areas of law.

Alternative Federal Challenges: Absent Roe, advocates might have pursued different federal constitutional arguments. Instead of the privacy framework, they might have emphasized equal protection arguments (as Justice Ruth Bader Ginsburg later suggested would have been preferable) or developed novel approaches based on interstate commerce or the privileges and immunities clause.

Legislative Dominance: State legislatures would have remained the primary battlegrounds for abortion policy. By 2025, this alternate America would likely feature approximately 15-20 states with broadly legal abortion, 15-20 with severe restrictions or near-total bans, and the remainder with moderate regulations. This division would roughly track the post-Dobbs landscape in our timeline, but would have developed through decades of incremental legislative changes rather than in response to court decisions.

Transformed Political Alignments

The absence of Roe would have profoundly altered American political coalitions and party development:

Religious Voting Patterns: Without Roe as a unifying force, the coalition between evangelical Protestants and Catholics might have developed later or remained more fractured. White evangelicals might have remained more politically diverse through the 1980s and 1990s, potentially maintaining stronger connections to the Democratic Party in the South and Midwest.

Party Realignment: The Republican Party's transformation into a consistently anti-abortion party and the Democratic Party's evolution toward a pro-choice position would have occurred more gradually and unevenly. Regional differences within parties might have persisted longer, with pro-choice Republicans maintaining stronger positions in the Northeast and anti-abortion Democrats retaining more influence in the South and rural Midwest.

Alternative Wedge Issues: Without abortion as the dominant social wedge issue, American politics might have fractured along different cultural lines. Issues like prayer in schools, gay rights, or gun control might have played more central roles in defining the culture wars of the 1980s and 1990s.

Presidential Politics: Presidential candidates might have maintained more moderate or ambiguous positions on abortion for much longer. The issue would have been less central to Supreme Court nominations, potentially allowing for less polarized confirmation processes and a different composition of the Court by the 2000s.

Medical and Public Health Developments

The medical field and public health outcomes related to reproductive healthcare would have developed along significantly different lines:

Medication Abortion: The development and approval of medication abortion (mifepristone and misoprostol) would have followed a different trajectory. In restrictive states, these medications might never have received approval, while liberal states might have embraced them earlier and with fewer restrictions than occurred under the FDA in our timeline.

Telemedicine and Innovation: Without federal protections but also without federal restrictions, innovative service delivery models might have emerged earlier in permissive states. Telemedicine abortion services might have developed in the 2000s rather than the 2020s, creating models that could influence other areas of healthcare delivery.

Research and Training Disparities: Medical research and provider training related to abortion would have become increasingly concentrated in states with legal abortion, creating centers of excellence in some regions while leaving others with few providers trained in managing pregnancy complications.

Public Health Surveillance: With states maintaining different legal frameworks, national data collection on abortion safety and access would have been more fragmented, complicating public health research and policy development.

Technological and Social Adaptations

The internet age would have transformed abortion access and advocacy in unique ways under this state-by-state regime:

Digital Underground Networks: By the 2000s, underground abortion networks would have leveraged digital technologies to connect women with providers across state lines or with international sources of medication abortion. These networks would operate openly in permissive states while maintaining secrecy in restrictive ones.

Corporate Policies: Major employers might have developed policies addressing reproductive healthcare disparities among their employees in different states earlier than occurred in our timeline after Dobbs. By the 2010s, some national companies might offer travel benefits or insurance coverage specifically designed to equalize access across state lines.

Interstate Legal Conflicts: As digital communication and interstate travel for abortions increased, legal conflicts between states would have emerged. Restrictive states might have attempted to criminalize helping residents travel for abortions, while permissive states passed shield laws protecting providers. These conflicts would have created complex legal questions about extraterritoriality and interstate commerce that might eventually have forced Supreme Court intervention.

Global Position and Comparison

America's position in global reproductive rights discussions would have differed significantly:

International Outlier Status: Without Roe, the United States would have been viewed internationally as having an unusually decentralized approach to abortion regulation compared to other developed nations, many of which addressed abortion through national legislation rather than constitutional interpretation.

Different International Influences: American advocacy strategies might have been more influenced by successful campaigns in other countries, such as Ireland's 2018 referendum or Argentina's legislative approach. Conversely, the absence of Roe might have meant American constitutional arguments had less influence on emerging democracies developing their own reproductive rights frameworks.

By 2025, this alternate America would feature deeply entrenched regional differences in abortion access that had developed over five decades rather than primarily in response to Dobbs. The political, social, and healthcare landscapes would reflect this long-term division, with communities on both sides having developed sophisticated adaptations to their different legal environments. While the geographical distribution of abortion access might look similar to our post-Dobbs America, the institutional, cultural, and political contexts surrounding these divisions would be profoundly different, reflecting decades of separate development rather than a sudden legal rupture.

Expert Opinions

Dr. Melissa Garner, Professor of Constitutional Law at Columbia University, offers this perspective: "Without Roe, American constitutional law would have developed along dramatically different lines. The privacy doctrine that emerged from Roe influenced numerous subsequent decisions on issues ranging from contraception to same-sex relationships. In its absence, state constitutions would have played a much more prominent role in developing privacy protections. The Supreme Court might have eventually addressed abortion rights through an equal protection framework instead, potentially providing a more durable foundation for reproductive rights. Alternatively, without the federal judiciary taking the lead, state legislatures would have remained the primary arena for these debates, likely resulting in policies more reflective of regional values but also more vulnerable to shifting political winds."

Dr. James Wilkins, Historian of American Religion at Notre Dame University, suggests: "The absence of Roe would have fundamentally altered the trajectory of religious political engagement in America. The decision served as a catalyst for bringing evangelicals into conservative politics in unprecedented ways during the late 1970s and early 1980s. Without this galvanizing national event, the Religious Right might have coalesced more slowly or around different issues. The Catholic-evangelical alliance that became central to conservative politics might never have solidified so strongly. Religious conservatives would still have found their political voice eventually, but the specific character, timing, and effectiveness of their mobilization would have differed substantially, potentially allowing for more diverse religious voices in both major political parties for decades longer."

Dr. Sophia Washington, Senior Fellow at the Center for Health Policy Research, argues: "The public health consequences of a no-Roe America would have been complex and uneven. States that legalized abortion early would have developed robust provider networks and safety protocols, potentially achieving better outcomes than under the more restricted but nationally legal regime that followed Roe. However, in restrictive states, unsafe abortions would have remained a significant public health concern well into the 21st century. What's most interesting is how technology might have evolved differently in response to these disparities. Medication abortion might have been developed and implemented earlier as a response to access barriers, and telemedicine innovations might have emerged sooner from necessity. By 2025, these technological adaptations might actually have produced more accessible care in permissive states than developed under the regulatory framework that followed Roe in our timeline, while leaving even larger gaps in restrictive regions."