And the ones that already protect the right to choose.
A Supreme Court ruling that will officially overturn Roe v. Wade is all but imminent — and many conservative-led states are ready for the change.
In the 1973 landmark ruling, the court held that the “right to an abortion fell within the right to privacy ... protected by the 14th Amendment,” according to Oyez. But a leaked draft opinion indicated that the court no longer sees Roe v. Wade as settled law; when it’s gutted, it will be up to the states to regulate abortion. Several states are already poised to immediately put abortion bans into effect with “trigger laws” contingent on Roe v. Wade, while others have independently protected the right to abortion and codify Roe through their own state legislatures and constitutions.
“Either an overturning or an undercutting of Roe would mean that states have much more leeway in enacting restrictions on abortion to the extent that it could even make abortion virtually impossible to get,” Elizabeth Nash, senior state issues manager at the Guttmacher Institute, told Mic in 2018.
States with trigger laws
As of now, 13 states are already prepared with trigger laws that will automatically ban abortion if Roe v. Wade is overturned: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennesses, Texas, Utah, and Wyoming. And it’s almost certain more will be added to the list. According to the Guttmacher Institute, 23 states have laws on the books that could restrict abortion rights in the case of Roe being overturned.
These trigger bans outlaw performing abortions in all or most cases, with punishments that include prison time and exhorbitant fines. Oklahoma's law, for instance, would punish anyone who performs or attempts to perform abortion with up to 10 years in prison and a maximum $100,000 fine — with no exceptions for cases of rape or incest.
“After the passage of Roe, a handful of states said, ‘If we can ever go back, we want to go back,’” Daniela Kraiem, associate director of the women and the law program at the Washington College of Law at American University, told Mother Jones in 2017. Kraiem added that “the point of those laws, up until now, has been largely symbolic,” giving states a way to “allow women to exercise their constitutional rights, but under protest.”
Such trigger laws would almost immediately take effect should Roe v. Wade be overturned. The South Dakota law is “effective on the date that the states are recognized by the U.S. Supreme Court to have the authority to prohibit abortion at all stages of pregnancy,” while the Mississippi statute takes effect 10 days after the state’s attorney general confirms in writing that the Supreme Court has overturned the ruling.
Some state laws are a bit more vague. North Dakota’s trigger law, for example, specifies only that the “act becomes effective on the date the legislative council approves by motion the recommendation of the attorney general ... that it is reasonably probable that this act [banning abortion] would be upheld as constitutional.”
The Georgetown Law Journal noted this means it’s possible the law could take effect even without the court specifically ruling on a challenge to Roe v. Wade, explaining that “anything that makes the attorney general more likely to conclude that it is ‘reasonably probable’ that courts will uphold the statute could serve as the trigger, including a change in attorneys general if the new officeholder were to have a more sensitive ‘trigger finger.’”
For some states, abortion bans enacted before Roe v. Wade are currently unenforceable but still on the books, meaning they could be revived should the decision be overturned.
According to the Center for Reproductive Rights (CRR), if an existing state ban was never overturned or challenged in court, it’s possible state lawmakers could simply begin enforcing said law should Roe v. Wade be overturned. According to the Guttmacher Institute, nine states currently have such pre-Roe, unenforced laws: Alabama, Arizona, Arkansas, Michigan, Mississippi, North Carolina, Oklahoma, West Virginia, and Wisconsin.
Some of those same states, and a handful of others, have abortion bans that were completely or partially blocked by state courts based on Roe v. Wade: Alabama, Arkansas, Georgia, Kentucky, Mississippi, Missouri, Ohio, South Carolina, and Tennessee. Per the CRR, officials in those states could file actions asking the courts to activate the bans once the Supreme Court’s ruling is official.
States likely to take action
A number of conservative states are also likely to take action on abortion in the absence of Roe v. Wade, even if they don’t have laws already poised to take effect.
According to the Guttmacher Institute, seven states — Arkansas, Kansas, Kentucky, Louisiana, Missouri, North Dakota and Ohio — have laws in effect expressing lawmakers’ intent to restrict abortion rights to the maximum extent possible permitted by the Supreme Court.
“Our shorthand for these are intent statements,” Nash said. “The state has a law that cannot be enforced, but it basically says something like, ‘The state intends to ban abortion to the extent allowed by the U.S. Supreme Court.’ And while those statements don’t have the force of law, they put down a marker that really says what the state legislature would like to do if [it] could. So those laws would require the state lawmakers to go back and pass an abortion ban.”
Many states that the Guttmacher Institute classifies as “hostile to abortion rights” have enacted or attempted to enact bans specifically based on the age of the fetus, including Iowa’s restrictive — and currently blocked — “fetal heartbeat law,” banning abortions after six weeks.
“We’re really looking at exacerbating the existing reality [if Roe v. Wade is overturned], which is we already have abortion restrictions in place in much of the country. We already have very limited access to abortion services in much of the country,” Nash said.
States protecting abortion rights
While many states have taken steps to limit access to abortion, others have codified Roe or are working to do so now.
According to the Guttmacher Institute, 16 states plus the District of Columbia protect the right to abortion through legislation or within their state constitutions. Five of them (Colorado, D.C., New Jersey, Oregon, and Vermont) have laws that protect that right throughout pregnancy; the remaining 12 states (California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New York, Rhode Island, and Washington) allow abortions prior to viability and if needed to protect the life or health of the pregnant person.
Per the CRR, some state Supreme Courts — including those in Iowa, Minnesota, and Montana — have ruled that abortion rights are protected under the state constitutions.
Nash said this potential patchwork means that pro-abortion-rights advocates will have to “grapple with what it means to have accessible abortion across the country” in the absence of Roe v. Wade. While this will involve fighting against abortion restrictions, it will also require ensuring existing protections in more liberal states remain in place.
Indeed, liberal lawmakers have ramped up their efforts to protect abortion in the wake of the recent Republican attacks and the Supreme Court opinion leak. The day after the leak, California Governor Gavin Newsom announced that he and two state lawmakers are preparing an amendment for the state constitution. “We can’t trust SCOTUS to protect the right to abortion, so we’ll do it ourselves,” Newsom tweeted, alongside the official announcement.
“If Roe is overturned or undercut, we all need to be aware because access to health care shouldn’t depend on where you live,” Nash said. “But that is the reality for abortion care, and that will become even more the reality if Roe is overturned.”
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