The featured article, by Paul Benjamin Linton, Esq., explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators on both sides of the issue believe.
More than two-thirds of the States have repealed their pre-Roe laws or have amended those laws to conform to Roe v. Wade, which allows abortion for any reason before viability and for virtually any reason after viability. Pre-Roe laws that have been expressly repealed would not be revived by the overruling of Roe. Only three States that repealed their pre-Roe laws (or amended them to conform to Roe) have enacted post-Roe laws attempting to prohibit some or most abortions throughout pregnancy. Those laws have been declared unconstitutional by the federal courts and are not now enforceable.
The author concludes that, while post-viability and other late term abortion statutes would be enforceable if Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey were overruled, few of those statutes would have any impact on the incidence of such abortions because of their open-ended exceptions for physical and mental health of the mother.
It is notable in the Linton article the number of states that have expressly provided for abortion for those fetuses with "grave and permanent physical deformity or mental retardation" (Delaware); "grave, permanent, and irremediable mental or physical defect" (Georgia); "genetic defect or serious deformity or abnormality" (Maryland); "grave physical or mental defect" (New Mexico); "grave physical or mental defect" (North Carolina); "serious physical or mental defect" (Oregon); "grave physical or mental defect" (South Carolina); "grave defects" (Utah); and...