What If Roe v. Wade Was Never Overturned?

The Actual History

On June 24, 2022, the United States Supreme Court issued its ruling in Dobbs v. Jackson Women's Health Organization, overturning the landmark 1973 Roe v. Wade decision that had established a constitutional right to abortion. This 6-3 decision effectively eliminated the federal protection for abortion rights that had stood for nearly 50 years and returned the authority to regulate abortion to individual states.

The path to this reversal began decades earlier. Following the original Roe decision, anti-abortion activists and conservative politicians worked systematically to challenge and restrict abortion access. Their strategy included passing state-level restrictions, supporting anti-abortion candidates, and perhaps most critically, focusing on reshaping the federal judiciary—particularly the Supreme Court.

This strategy accelerated dramatically during Donald Trump's presidency (2017-2021). Trump, who had promised to appoint justices who would overturn Roe, successfully nominated three conservative justices to the Supreme Court: Neil Gorsuch in 2017 (replacing Antonin Scalia after Republicans blocked Barack Obama's nominee Merrick Garland), Brett Kavanaugh in 2018 (replacing Anthony Kennedy), and Amy Coney Barrett in 2020 (replacing Ruth Bader Ginsburg just weeks before the 2020 presidential election). These appointments shifted the Court's ideological balance decisively to the right, creating a 6-3 conservative majority.

The Dobbs case originated when Mississippi passed a law in 2018 banning most abortions after 15 weeks of pregnancy, directly challenging the viability standard established by Roe and affirmed in the 1992 Planned Parenthood v. Casey decision. When the case reached the Supreme Court, Mississippi explicitly asked the Court to overturn Roe.

The Court's majority opinion, written by Justice Samuel Alito, held that the Constitution does not confer a right to abortion, that Roe was "egregiously wrong from the start," and that the issue should return to the "people's elected representatives." The three liberal justices—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—issued a joint dissent, arguing that the Court had abandoned a fundamental constitutional protection.

Following the Dobbs decision, the American abortion landscape changed dramatically. Within a year, approximately half of U.S. states enacted significant abortion restrictions or near-total bans, many through "trigger laws" designed to take effect upon Roe's reversal. By 2023, about 22 states had laws severely restricting or banning abortion.

The aftermath created a patchwork of abortion access across the country. Some states, like California, New York, and Illinois, expanded protections and positioned themselves as "sanctuary states" for those seeking abortions. Meanwhile, residents of restrictive states increasingly traveled across state lines for abortion care, faced with limited or no legal options at home.

The decision also energized political activism on both sides. It became a central issue in the 2022 midterm elections, where Democrats performed better than expected, partly attributed to voter concern over abortion rights. Multiple states saw ballot initiatives related to abortion rights, with voters consistently supporting abortion protections, even in traditionally conservative states like Kansas.

By 2025, the post-Dobbs landscape had solidified into a deeply divided country with vastly different reproductive rights depending on geography. Legal challenges continued in many states, while federal legislation attempts either to codify abortion rights or to further restrict abortion repeatedly failed in a politically divided Congress.

The Point of Divergence

What if the Supreme Court had not overturned Roe v. Wade in its 2022 Dobbs decision? In this alternate timeline, we explore a scenario where the constitutional right to abortion remains protected at the federal level, despite the conservative majority on the Supreme Court.

Several plausible divergences could have led to this alternate outcome:

First, the composition of the Court might have differed. Perhaps Justice Ruth Bader Ginsburg, aware of her declining health and the political stakes, chose to retire during the Obama administration when Democrats still controlled the Senate, allowing for a liberal replacement. Alternatively, Senate Republicans might have permitted Obama's nominee Merrick Garland to receive a confirmation hearing and vote in 2016, potentially resulting in a more moderate Court.

Another possibility involves Chief Justice John Roberts successfully persuading one of the conservative justices to adopt a more incremental approach. In our actual timeline, Roberts authored a concurring opinion that would have upheld the Mississippi law without completely overturning Roe. In this alternate timeline, Roberts convinces either Justice Brett Kavanaugh or Justice Amy Coney Barrett to join this middle-ground position, creating a controlling plurality opinion that preserves Roe while allowing greater state restrictions.

A third scenario involves a substantive shift in Justice Kavanaugh's jurisprudential thinking. Having expressed significant concerns about overturning precedent during his confirmation hearings, Kavanaugh might have ultimately decided that stare decisis—the legal principle of honoring established precedent—carried more weight than his personal views on abortion. With Roberts and Kavanaugh joining the three liberal justices, the Court would have a 5-4 majority to uphold Roe in some form.

Finally, the case could have taken a different procedural path. Perhaps the Court chose to decide Dobbs on narrower grounds, ruling only on the constitutionality of Mississippi's 15-week ban without addressing the broader question of Roe's validity. Or the Court might have dismissed the case after oral arguments, finding that it had been "improvidently granted" certiorari (review)—a rare but not unprecedented move when justices realize a case presents complications they hadn't anticipated.

In this alternate timeline, we'll explore the scenario where Chief Justice Roberts successfully convinces Justice Kavanaugh to join a controlling opinion that upholds the core of Roe while permitting the Mississippi 15-week restriction—effectively moving the line from viability (roughly 24 weeks) to 15 weeks, but maintaining federal constitutional protection for first-trimester abortions.

Immediate Aftermath

The Supreme Court Decision

In this alternate timeline, the Supreme Court issues its Dobbs ruling in June 2022 with a notably different outcome. Chief Justice John Roberts authors the controlling opinion, joined by Justice Brett Kavanaugh, creating a narrow 5-4 decision that upholds Mississippi's 15-week abortion restriction while explicitly preserving the core constitutional right established in Roe.

The Roberts opinion acknowledges the state's interest in protecting potential life earlier than the viability standard set in Roe and Casey, but emphasizes that "the fundamental right of women to make the deeply personal choice about pregnancy termination in its early stages remains constitutionally protected." The opinion establishes a new framework: states may regulate abortion after the first trimester (approximately 12-13 weeks) if they provide exceptions for maternal health, rape, incest, and fetal anomalies, but may not impose "undue burdens" on abortion access before that point.

Justices Thomas, Alito, Gorsuch, and Barrett dissent, arguing for Roe's complete reversal. The liberal justices—Breyer, Sotomayor, and Kagan—file a concurring opinion, reluctantly accepting the new timeline but emphasizing that "the Constitution's guarantee of reproductive autonomy, though somewhat diminished today, remains a fundamental protection for American women."

Political Reactions

The modified ruling produces complex political reactions that defy simple partisan narratives:

Conservative Response: Anti-abortion advocates express mixed reactions. While some celebrate the Court's permission of earlier restrictions as a partial victory, others voice deep disappointment that the opportunity to fully overturn Roe was missed. Organizations like Americans United for Life and the Susan B. Anthony List quickly pivot their strategies, focusing on pushing for 12-week bans nationwide while continuing to advocate for future cases that might complete Roe's reversal.

Republican politicians navigate a delicate situation. More moderate Republicans privately express relief that the political lightning rod of a full Roe reversal has been avoided before the midterms, while publicly emphasizing the win of earlier restrictions. Hard-line conservatives criticize the Court's "half-measure" and call for constitutional amendments or Court reform. Senate Minority Leader Mitch McConnell carefully frames the decision as "an important step toward recognizing states' proper role in abortion policy."

Progressive Response: Abortion rights advocates respond with a combination of relief and concern. Organizations like Planned Parenthood and NARAL express gratitude that core abortion rights remain protected while immediately launching campaigns against the new 12-week framework. "Today we avoided disaster, but suffered a significant setback," announces the president of the Center for Reproductive Rights in a press conference hours after the decision.

Democratic politicians, who had prepared messaging for a complete Roe reversal, quickly adjust. President Biden issues a statement calling the decision "a concerning restriction on women's reproductive freedom, though not the devastating blow to constitutional rights many feared." Congressional Democrats introduce legislation to codify abortion rights up to viability, though without the urgency that a complete reversal would have inspired.

State-Level Responses

The modified ruling creates a more nuanced landscape at the state level:

Conservative States: States with "trigger laws" designed to ban abortion upon Roe's reversal find those laws unenforceable under the new ruling. However, Republican-led states quickly begin passing laws restricting abortion at 12-15 weeks, the earliest now constitutionally permissible. Texas, which had implemented a controversial six-week ban through a novel private enforcement mechanism, faces new legal challenges as opponents argue the law clearly violates the reaffirmed constitutional right.

By early 2023, approximately 20 states have enacted laws restricting abortion at 12-15 weeks, generally including the required exceptions. Many of these laws face immediate court challenges over the adequacy of their exceptions or whether they create "undue burdens" in practice.

Progressive States: Democratic-led states respond by strengthening abortion protections, emphasizing their commitment to pre-viability access. California, New York, Illinois, and others pass laws explicitly protecting abortion rights up to viability (24 weeks) or beyond. These states also expand funding for abortion services and extend protections for providers offering telehealth abortion services to residents of restrictive states.

Healthcare Landscape

The healthcare system experiences less dramatic disruption than occurred in our actual timeline:

Abortion Providers: While some providers in conservative states begin closing or relocating in anticipation of 12-week bans, the mass closure of clinics seen in our timeline is avoided. Many providers adapt by focusing on earlier abortion care, expanding capacity for first-trimester procedures, and developing more robust referral networks for patients needing later care.

Patient Access: Geographic disparities in abortion access increase, but less severely than in our timeline. Women seeking abortions after 12-15 weeks experience more limited options and often require interstate travel, but first-trimester abortion—which represents roughly 92% of all abortions—remains legally accessible nationwide, albeit with varying practical barriers.

Medical Education: Medical schools and residency programs continue including abortion training in their curricula, though programs in restrictive states focus primarily on early pregnancy termination and emergency interventions rather than comprehensive reproductive healthcare.

Long-term Impact

Legal Evolution (2023-2028)

The Supreme Court's compromise ruling in Dobbs sets in motion a new phase of abortion jurisprudence focused on defining the boundaries of the modified Roe framework:

Refinement Through Litigation: Between 2023 and 2026, the Supreme Court hears multiple cases clarifying the parameters of permissible abortion regulation. Key decisions establish:

Clear standards for what constitutes "undue burden" under the new framework
Requirements for legitimate health, rape, and incest exceptions
The constitutionality of waiting periods and mandatory counseling
Limits on state regulation of medication abortion and telehealth services

By 2025, the Court issues a significant ruling in Planned Parenthood v. Ohio, establishing that states cannot impose requirements designed primarily to delay procedures past the 12-week threshold. Chief Justice Roberts, writing for a 5-4 majority, articulates that "states may not achieve through procedural barriers what they cannot accomplish directly."

Continued Conservative Strategy: Anti-abortion advocates continue seeking a case that might fully overturn Roe, but their urgency diminishes as states successfully implement significant restrictions. Conservative legal strategists shift focus to incrementally narrowing abortion rights through challenges to specific methods, funding mechanisms, and provider requirements.

Stabilizing Precedent: By 2028, the modified Roe framework becomes increasingly entrenched as precedent. Justice Barrett, surprisingly, authors a concurrence in a 2027 case indicating her reluctance to revisit the fundamental question of constitutional abortion rights, citing principles of stare decisis and the public's reliance on the Court's consistency. This signals to many that the Court has reached an equilibrium position on abortion that might endure for a generation.

Political Landscape Transformation

The preservation of modified abortion rights significantly impacts American political dynamics:

Electoral Politics: Without the complete reversal of Roe to energize Democratic voters in 2022, Republicans perform somewhat better in the midterm elections than in our timeline, regaining control of the House with a slightly larger margin and potentially securing a narrow Senate majority.

However, by the 2024 presidential election, abortion becomes less dominant as a campaign issue. Both parties adjust their messaging: Democrats criticize the narrowing of rights but focus more on economic issues, while Republicans emphasize their success in restricting later abortions while pivoting toward economic and border security concerns.

Partisan Realignment: By 2028, abortion's role as a defining partisan issue gradually diminishes. Polling shows increasing numbers of Americans accepting the 12-15 week framework as a reasonable compromise, though strong advocates on both sides remain dissatisfied. This partial de-escalation allows some voter realignment based on other issues, particularly economic concerns and immigration policy.

Legislative Activity: Congress repeatedly attempts to pass federal legislation on abortion, but neither party secures the supermajority needed to overcome Senate filibuster rules. Democrats introduce bills to codify abortion rights up to viability, while Republicans propose national 12-week bans with exceptions. These competing bills become regular political theater but rarely advance to serious consideration.

State-Level Politics: The modified ruling keeps abortion on state legislative agendas but with lower temperature than in our timeline. By 2026, most states have aligned their laws with the new constitutional framework, creating a relatively stable—if uneven—national landscape, with approximately 25 states restricting abortion at 12-15 weeks and 25 states maintaining access up to viability or later.

Healthcare System Adaptation

The healthcare system adapts to the modified framework in ways significantly different from our actual timeline:

Service Distribution: Rather than the stark division between "abortion ban states" and "abortion access states" seen in our timeline, a more graduated system emerges. Even in conservative states, first-trimester abortion services remain available in major population centers, while specialized clinics in progressive states handle most second-trimester procedures.

Innovation in Early Care: With legal abortion nationwide limited primarily to the first trimester, significant medical innovation focuses on earlier pregnancy detection and more accessible early abortion options. By 2025, improved home pregnancy tests reliably detect pregnancy before 4 weeks, and telehealth abortion services expand dramatically, serving patients as early as 5-6 weeks gestation.

Medication Abortion Dominance: The proportion of abortions performed using medication (mifepristone and misoprostol) rather than surgical procedures rises from approximately 54% in 2022 to over 75% by 2028. The FDA permanently removes in-person dispensing requirements for abortion medication in 2023, enabling true telehealth abortion services nationwide, though some conservative states attempt to restrict this access through state pharmacy regulations.

Data and Surveillance: Unlike in our timeline, where some states criminalized abortion and implemented digital surveillance measures to enforce bans, the persistence of constitutional protection prevents the emergence of abortion surveillance systems. Privacy protections for abortion patients strengthen in most jurisdictions, with even conservative states focusing regulation on providers rather than patients.

Comparative Global Position

The United States' maintenance of constitutional abortion protection, albeit in modified form, positions it differently in the global context:

International Standing: While some international observers note that America's 12-15 week framework is more restrictive than many European countries with similar development levels (where 18-24 week limits are common), the U.S. avoids becoming viewed as an outlier among developed nations on reproductive rights. This helps maintain American credibility when advocating for women's rights internationally.

Global Movement Dynamics: Without a complete Roe reversal to serve as a cautionary tale, international abortion rights movements develop somewhat differently. Rather than pointing to American regression, global advocates focus on achieving incremental expansions of rights in restrictive countries. By 2028, several Latin American countries that had liberalized abortion laws in our timeline make similar progress in this alternate timeline, but with less explicitly anti-American rhetoric in their framing.

Social and Demographic Impact

The preservation of first-trimester abortion rights nationwide produces different social outcomes than in our actual timeline:

Public Health Metrics: Maternal mortality rates, which increased in states with abortion bans in our timeline, remain more stable in this alternate reality. However, women seeking second-trimester abortions still face significant barriers, creating measurable disparities in outcomes based on geography, race, and socioeconomic status.

Educational and Economic Outcomes: Research comparing outcomes for women in more restrictive versus less restrictive states shows smaller disparities than in our timeline, though the 12-week limitation still creates documented differences in educational attainment and economic mobility for women unable to access later abortions.

Fertility and Family Formation: Unlike in our timeline, where some ban states saw notable increases in births among women with fewer resources, this alternate timeline shows smaller, more gradual shifts in birth rates across regions. Family planning organizations successfully focus on earlier pregnancy detection and decision-making, helping most women navigate the 12-week timeline.

Expert Opinions

Dr. Melissa Hartman, Professor of Constitutional Law at Georgetown University, offers this perspective: "The Roberts Court's compromise in Dobbs represents a classic example of judicial minimalism—changing constitutional doctrine incrementally rather than revolutionary. While disappointing to purists on both sides, this approach actually aligns with how most major rights questions have been addressed throughout American history. The 12-week framework, while arbitrary in some ways, has proven surprisingly stable because it partially satisfied competing values of autonomy and state interest in potential life. This may well stand as Chief Justice Roberts' most significant jurisprudential legacy."

Dr. Terrence Williams, Senior Fellow at the American Enterprise Institute and conservative legal scholar, provides a different analysis: "The failure to overturn Roe completely in 2022 represents one of the greatest missed opportunities in modern constitutional history. Justice Kavanaugh's decision to join the Chief Justice's middle-ground opinion reflected institutional concerns that ultimately prioritized the Court's public standing over correct constitutional interpretation. While the resulting framework has somewhat reduced abortion access, it left intact the fundamental constitutional error of discovering abortion rights in the Fourteenth Amendment. Conservative legal advocates have been forced to adapt to a reality where complete reversal is unlikely for at least another generation."

Dr. Sophia Chen, Director of the Reproductive Health Equity Institute, explains the healthcare implications: "The post-Dobbs compromise created a healthcare system that's less catastrophic than what we might have seen with a complete reversal, but still fundamentally unequal. The 12-week framework has accelerated innovations in early abortion care, which is positive, but it's created new disparities based on geography, resources, and education. Women with means, information, and healthcare literacy detect pregnancies earlier and navigate the system successfully, while vulnerable populations still face significant barriers. The system works adequately for those with resources and fails those without—a familiar pattern in American healthcare, now replicated in abortion access."