By repudiating Roe v. Wade, the 1973 decision that said women have a constitutional right to terminate a pregnancy, the Supreme Court has freed states to set their own abortion policies. But the impact of the new leeway allowed by the Court's decision in Dobbs v. Jackson Women's Health Organization will vary widely across the country. While severe restrictions will be enacted or take effect in many states, abortion will remain legal in most.
Thirteen states have "trigger" bans that are designed to take effect after Roe is overturned. Some of those states, plus others, have enacted laws that were enjoined based on Roe and Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe's "central holding." Several states do not currently have bans but are expected to enact them in response to Dobbs, which overturned both of those precedents.
Some states never repealed pre-Roe bans. Politico notes that "court action will likely be necessary to determine whether states' pre-Roe abortion bans can take effect or enjoined laws restricting access to the procedure can be lifted, a process legal experts anticipate could take weeks to months."
Existing statutes range from bans like the Mississippi law upheld in Dobbs, which prohibits abortion after 15 weeks of gestation, to nearly complete prohibitions like the trigger laws. In between are "heartbeat" laws that prohibit abortion after fetal cardiac activity can be detected, which typically happens around six weeks into a pregnancy, when women may not even realize they are pregnant.
In terms of practical impact, the cutoff makes a huge difference. Even states that generally allow abortion often restrict it after "viability," the point at which a fetus can survive outside the womb. The dividing line for viability is generally placed around 24 weeks of gestation. In 2019, according to data collected by the Centers for Disease Control and Prevention (CDC), just 1 percent of abortions in the United States were performed at 21 weeks or later. Only 4 percent were performed after 15 weeks. But 57 percent were performed after six weeks, and some of the rest also would be covered by the "heartbeat" laws.
Most states are unlikely to ban abortion. In some, abortion rights are protected by statute, by judicial interpretations of state constitutions, or both. In others, there is not enough political support to enact new restrictions.
Here is a state-by-state rundown of what we can expect now that the Supreme Court has decided the Constitution does not guarantee a right to abortion after all. Red indicates the 22 states that are certain or likely to soon impose or start enforcing new restrictions on abortion, ranging from moderate to severe. Green indicates the 23 states where abortion will remain broadly legal. Blue indicates the five states where new restrictions are unlikely in the short term but are possible in the longer term, depending on electoral outcomes or judicial decisions.
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Alabama
Abortion will be severely restricted. In 2019, Republican Gov. Kay Ivey signed into law a bill that bans abortion at any stage of pregnancy with a few narrow exceptions, including "cases where abortion is necessary in order to prevent a serious health risk to the unborn child's mother." Because of a federal injunction, the law never took effect, but the Supreme Court's ruling in Dobbs opens the door to lifting that injunction.
Alaska
Abortion will remain broadly legal. In 1997, the Alaska Supreme Court ruled that the state constitution protects "reproductive rights, including abortion."
Arizona
Abortion will be moderately or severely restricted. In March, Republican Gov. Doug Ducey signed into law a ban on abortion after 15 weeks of gestation except for medical emergencies. That law, which is similar to the Mississippi ban upheld in Dobbs, takes effect in late September. It does not affect the vast majority of abortions: In 2019, according to the CDC's data, 95 percent of Arizona abortions were performed at 15 weeks or earlier. But Arizona also has a stricter law, banning abortion at any stage of pregnancy except when necessary to save the mother's life, that was enjoined after Roe but has not been repealed and might be enforced now that Roe has been overturned.
Arkansas
Abortion will be severely restricted. In 2021, Gov. Asa Hutchinson signed into law a ban on abortion except for life-threatening medical emergencies. A federal judge blocked enforcement of the law, which would have taken effect last summer, based on the abortion precedents that the Supreme Court has now overturned. Arkansas also has a trigger law, enacted in 2019, that prohibits abortion except when a pregnancy endangers a woman's life. That law takes effect after the state attorney general certifies that Roe's central holding has been reversed.
California
Abortion will remain broadly legal. In 1969, four years before Roe, the California Supreme Court ruled that the state's abortion ban was inconsistent with the California constitution's guarantee of due process. Under a 2002 law, "The state may not deny or interfere with a woman's right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman."
Colorado
Abortion will remain broadly legal. The Reproductive Health Equity Act, passed this year, codified the right to terminate a pregnancy.
Connecticut
Abortion will remain broadly legal. A state law says "the decision to terminate a pregnancy prior to the viability of the fetus shall be solely that of the pregnant woman in consultation with her physician." It adds that "no abortion may be performed upon a pregnant woman after viability of the fetus except when necessary to preserve the life or health of the pregnant woman."
Delaware
Abortion will remain broadly legal. Delaware's law is similar to Connecticut's, saying "a physician may terminate, assist in the termination of, or attempt the termination of a human pregnancy before viability." It allows post-viability abortions when, "in the good faith medical judgment of the physician, the termination is necessary for the protection of the woman's life or health or in the event of a fetal anomaly for which there is not a reasonable likelihood of the fetus's sustained survival outside the uterus without extraordinary medical measures."
Florida
Abortion could be moderately restricted. A 1980 amendment to Florida's constitution explicitly protects the "right of privacy," saying "every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein." That right, the Florida Supreme Court ruled in 1989, "is clearly implicated in a woman's decision of whether or not to continue her pregnancy." But the court will soon have a Republican-appointed majority, which suggests that decision could be modified or reversed when the court considers a ban on abortion after 15 weeks that Republican Gov. Ron DeSantis signed into law in April. That law, which takes effect on July 1, would affect less than 4 percent of abortions in Florida, according to the CDC's data.
Georgia
Abortion will be severely restricted. A 2019 law prohibits abortion after fetal cardiac activity can be detected, around six weeks into a pregnancy. The law was scheduled to take effect at the beginning of 2020, but it was blocked by a federal judge based on the Supreme Court's pre-Dobbs abortion precedents. In 2019, according to the CDC's numbers, 56 percent of abortions in Georgia were performed after six weeks; 44 percent were performed at six weeks or earlier, and some of those abortions also would be covered by the state's ban.
Hawaii
Abortion will remain broadly legal. Hawaii legalized abortion three years before Roe, and state law currently says "the State shall not deny or interfere with a female's right to choose or obtain an abortion of a nonviable fetus or an abortion that is necessary to protect the life or health of the female."
Idaho
Abortion will be severely restricted. This year Idaho enacted a six-week abortion ban, modeled after a Texas law that took effect in September, that authorizes private lawsuits to enforce that restriction. The law was scheduled to take effect on April 22, but the Idaho Supreme Court temporarily blocked it pending a legal challenge. In 2019, according to the CDC's data, two-thirds of abortions in Idaho were performed after six weeks; one-third were performed at six weeks or earlier, and some of those abortions would be affected by the state ban.
Idaho also has a trigger law, enacted in 2020, that takes effect 30 days after Roe's reversal. That law makes performing an abortion at any stage of pregnancy a felony punishable by two to five years in prison. It allows an affirmative defense when a physician has "determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman." The law also makes exceptions for pregnancies resulting from rape or incest.
Illinois
Abortion will remain broadly legal. The Illinois Supreme Court has interpreted the state constitution's guarantee of due process as encompassing a right to pre-viability abortion. The Reproductive Health Act, approved in 2019, recognizes "a fundamental right" to "have an abortion." It allows abortion after viability "if, in the professional judgment of the health care professional, the abortion is necessary to protect the life or health of the patient."
Indiana
Abortion is likely to be restricted by the Republican-controlled legislature, although it's not clear to what extent. In March, 100 of the 110 Republicans in the Indiana General Assembly signed a letter asking Republican Gov. Eric Holcomb to call a special session as soon as possible "should the U.S. Supreme Court's ruling [in Dobbs] expand Indiana's ability to protect unborn children." On Wednesday, Holcomb announced a special session beginning on July 6 to consider tax rebates, but the legislature also could pass an abortion bill.
In response to a 2020 Vote Smart survey, Holcomb said "abortion should always be illegal." But last month, when asked whether he supported a blanket ban without exceptions should the Supreme Court overturn Roe, he was cagey. "I have a hard time being the person that's part of taking of a life," he said. "And I'll review the decision that has impact on that."
Iowa
Abortion is likely to be severely restricted. This month the Iowa Supreme Court ruled that the state constitution does not protect a right to abortion, reversing a 2018 precedent to the contrary. That decision could allow enforcement of a previously enjoined 2018 law banning abortion after fetal cardiac activity can be detected. Judging from the CDC's data, that ban would affect most abortions in Iowa.
Kansas
Abortion will remain broadly legal. In 2019, the Kansas Supreme Court ruled that the state constitution's Bill of Rights, which says "all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness," protects "a woman's right to decide whether to continue a pregnancy."
Kentucky
Abortion will be severely restricted. This year Kentucky enacted a 15-week ban similar to Mississippi's, which would affect about 6 percent of abortions in that state. But Kentucky also has a trigger law, enacted in 2019, that prohibits abortion at any stage of pregnancy. The only exception is for cases where an abortion is "necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman." That law takes effect immediately after Roe's reversal.
Louisiana
Abortion will be severely restricted. In 2019, Louisiana enacted a six-week ban, which would affect most but not all abortions in that state. But Louisiana also has a "trigger law," enacted in 2006, that makes all abortions illegal except when necessary to save a pregnant woman's life. It takes effect immediately after Roe's reversal.
Maine
Abortion will remain broadly legal. A 1993 law says the state will "not restrict a woman's exercise of her private decision to terminate a pregnancy before viability." Post-viability abortions are permitted if the mother's life or health would otherwise be endangered.
Maryland
Abortion will remain broadly legal. Under state law, the government "may not interfere with the decision of a woman to terminate a pregnancy…before the fetus is viable." Abortion is permitted after viability if "the termination procedure is necessary to protect the life or health of the woman" or if "the fetus is affected by genetic defect or serious deformity or abnormality."
Massachusetts
Abortion will remain broadly legal. The Supreme Judicial Court of Massachusetts has held that abortion access is protected by the state constitution's guarantee of due process. The 2020 ROE Act codified a general right to abortion before 24 weeks of gestation. Abortion is permitted at 24 weeks or later "if it is necessary, in the best medical judgment of the physician, to preserve the life of the patient, if it is necessary, in the best medical judgment of the physician, to preserve the patient's physical or mental health or, in the best medical judgment of the physician, an abortion is warranted because of a lethal fetal anomaly or the fetus is incompatible with sustained life outside the uterus."
Michigan
New restrictions are unlikely in the short term. Gov. Gretchen Whitmer, a Democrat in the last year of her first term who will be seeking reelection in November, supports abortion rights. Both chambers of the state legislature are controlled by Republicans, but they do not have veto-proof majorities.
Michigan has a pre-Roe ban that is still on the books. Last month, a state judge temporarily enjoined enforcement of that 1931 law pending a legal challenge by Planned Parenthood, saying there was a "strong likelihood" that the organization would prevail. Michigan Court of Claims Judge Elizabeth Gleicher ruled that the state constitution's protection of "bodily integrity" includes a right to abortion, because "the link between the right to bodily integrity and the decision whether to bear a child is an obvious one."
Minnesota
Abortion will remain broadly legal. In 1995, the Minnesota Supreme Court ruled that "the right of privacy under the Minnesota Constitution encompasses a woman's right to decide to terminate her pregnancy."
Mississippi
Abortion will be severely restricted. Mississippi's 15-week ban, which applies "except in medical emergency and in cases of severe fetal abnormality," is the law that the Supreme Court upheld in Dobbs. The CDC's numbers indicate that the ban covers less than 1 percent of abortions in Mississippi. But Mississippi also has a six-week ban, enacted in 2019, and a trigger law, enacted in 2007, that says "no abortion shall be performed or induced in the State of Mississippi, except in the case where necessary for the preservation of the mother's life or where the pregnancy was caused by rape." The latter law takes effect after Mississippi's attorney general "certifies in an opinion to the Governor" that Dobbs makes it "reasonably probable that the provision would be upheld as constitutional."
Missouri
Abortion will be severely restricted. Missouri has a trigger law, enacted in 2019, that prohibits all abortions "except in cases of medical emergency." The ban takes effect after Roe's reversal is recognized by an opinion from the attorney general, a proclamation by the governor, or a concurrent resolution by the state legislature.
Montana
Abortion will remain broadly legal. In 1999, the Montana Supreme Court ruled that the "right of privacy" guaranteed by the state constitution protects "procreative freedom," including the right to obtain a pre-viability abortion.
Nebraska
New restrictions are likely. Last month, Gov. Pete Ricketts, a Republican, said he would call a special session of the state legislature to consider a blanket ban on abortion, without exceptions for pregnancies resulting from rape or incest. Nebraska's unicameral legislature is controlled by Republicans, who hold 32 of the 49 seats. But it's not clear that legislators are prepared to go as far as Ricketts would like: In April, a proposed trigger ban that would have allowed abortion only when necessary to save the mother's life fell two votes short of the 33 necessary for cloture.
Nevada
Abortion will remain broadly legal. In 1990, Nevada voters overwhelmingly approved a referendum that barred the state legislature from restricting abortion at 24 weeks of gestation or earlier without the approval of voters.
New Hampshire
New restrictions are unlikely. Abortion currently is legal up to 24 weeks, and last month Gov. Chris Sununu, a Republican serving his third two-year term, said he was committed to keeping it that way. "I'm a pro-choice governor," he declared, "and as long as I'm governor, we're going to remain a pro-choice state." The Center for Reproductive Rights predicts that "abortion will remain accessible in New Hampshire."
New Jersey
Abortion will remain broadly legal. In 1982, the New Jersey Supreme Court recognized "the fundamental right of a woman to control her body and destiny," including "the choice to terminate a pregnancy or bear a child." A 2022 law codifies that guarantee, saying every resident "shall have the fundamental right" to "choose whether to carry a pregnancy, to give birth, or to terminate a pregnancy."
New Mexico
Abortion will remain broadly legal. The state legislature is controlled by Democrats, who hold 27 of 42 seats in the Senate and 43 of 70 seats in the House of Representatives. Gov. Michelle Lujan Grisham, a Democrat who is seeking reelection this year, said she was "outraged and horrified" by the prospect of Roe's reversal.
New York
Abortion will remain broadly legal. A 2019 law protects "a woman's fundamental right to access safe, legal abortion" at 24 weeks of gestation or earlier. After 24 weeks, abortion is allowed when it is "necessary to protect the patient's life or health."
North Carolina
New restrictions are unlikely in the short term. Gov. Roy Cooper, a Democrat serving his second term, supports abortion rights. Republicans control both houses of the state legislature, but they do not have veto-proof majorities.
North Dakota
Abortion will be severely restricted. North Dakota has a trigger law, enacted in 2018, that bans abortion except "when necessary in professional judgment to prevent the pregnant female's death." That law takes effect when North Dakota's attorney general certifies that "it is reasonably probable that this Act would be upheld as constitutional" in light of a Supreme Court ruling.
Ohio
Abortion will be severely restricted. In 2019, Ohio enacted a six-week ban that would apply to roughly three-quarters of abortions performed in that state.
Oklahoma
Abortion will be severely restricted. This year Oklahoma enacted two abortion bans. One law, taking a cue from Texas, authorizes private lawsuits against anyone who performs or facilitates an abortion after fetal cardiac activity can be detected (i.e., around six weeks). The other law prohibits all abortions except "to save the life of a pregnant woman in a medical emergency." For good measure, Oklahoma also has a trigger law, enacted last year, that imposes a similarly broad ban. It takes effect once the state's attorney general certifies Roe's reversal.
Oregon
Abortion will remain broadly legal. In 1983, Oregon repealed all legal restrictions on abortion. In 2017, the state legislature went even further, approving a law that requires insurers to fully cover the cost of abortions.
Pennsylvania
New restrictions are unlikely in the short term. The Center for Reproductive Rights predicts that "abortion will remain accessible in Pennsylvania." Gov. Tom Wolf, a Democrat who is in the last year of his second term, supports abortion rights. Republicans control both houses of the state legislature, but they do not have veto-proof majorities. The Democratic nominee to replace Wolf in this year's election, Attorney General Josh Shapiro, likewise supports abortion rights.* But the Republican nominee, state Sen. Doug Mastriano, welcomes the demise of Roe, describes abortion as "science-denying genocide," and brags about sponsoring a "heartbeat bill" in 2019.
Rhode Island
Abortion will remain broadly legal. A 2019 law codifies the right to abortion, ruling out restrictions prior to viability and allowing post-viability abortions "when necessary to preserve the health or life" of a pregnant woman.
South Carolina
Abortion will be severely restricted. Last year, South Carolina enacted a six-week ban, which would apply to at least four-fifths of abortions performed in that state.
South Dakota
Abortion will be severely restricted. South Dakota has a trigger law, enacted in 2005, that bans abortion except when a woman's life is endangered by continuing a pregnancy. That law takes effect immediately after Roe's reversal.
Tennessee
Abortion will be severely restricted. Tennessee has a trigger law, enacted in 2019, that bans abortion except when "necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman." That law takes effect 30 days after Roe's reversal.
Texas
Abortion will be severely restricted. Actually, that has been true since last September, when a six-week ban took effect. The law evaded early judicial intervention by charging private litigants with enforcing it—the approach that Idaho and Oklahoma copied this year.
Based on 2019 data, the Texas ban would have affected roughly three-fifths of abortions performed in the state. After it took effect, the number of abortions performed by Texas clinics fell by nearly 60 percent. But taking into account women who used abortion pills or traveled to other states for the procedure, the net drop was probably more like 10 percent.
Texas also has a trigger law, enacted in 2019, that bans abortion except when continuing a pregnancy poses a risk of death or "substantial impairment of a major bodily function." That law takes effect 30 days after Roe's reversal.
Utah
Abortion will be severely restricted. Utah has a trigger law, enacted in 2020, that allows abortion when it is necessary to save the mother's life or avoid "a serious risk of substantial and irreversible impairment of major bodily function." The law also includes exceptions for cases involving rape, incest, or a fetus with a "uniformly diagnosable" and "uniformly lethal" defect or a "severe brain abnormality" resulting in a "mentally vegetative state." Otherwise, abortion is prohibited. The ban takes effect after the legislative general counsel certifies that "a court of binding authority" has deemed such restrictions constitutional.
Vermont
Abortion will remain broadly legal. A 2019 law recognizes "the freedom of reproductive choice" as "a fundamental right." It prohibits "public entities" from "interfering with or restricting the right of an individual to terminate the individual's pregnancy."
Virginia
Abortion will remain broadly legal. Gov. Glenn Youngkin, a Republican, describes himself as "pro-life" and has said he supports a "pain threshold" bill that would ban abortions after 20 weeks of gestation. But Democrats control the state Senate, and that chamber's president pro tempore, L. Louise Lucas, promises that any such legislation would "run into a BRICK WALL." The Center for Reproductive Rights, which notes that the state legislature "repealed numerous medically unnecessary restrictions on abortion access" in 2020, predicts that "abortion will remain accessible in Virginia."
Washington
Abortion will remain broadly legal. State law says the government "may not deny or interfere with a woman's right to choose to have an abortion prior to viability of the fetus" or "to protect her life or health" after that point.
West Virginia
New restrictions are likely. In 2018, West Virginia voters approved a constitutional amendment stating that "nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion." Gov. Jim Justice, a Republican, welcomes Roe's demise and describes West Virginia (accurately) as a "rock solid right-to-life state." Republicans control both chambers of the state legislature, and West Virginia still has a pre-Roe abortion ban on its books that could be enforced now that the Supreme Court has cleared the way.
Wisconsin
New restrictions are unlikely in the short term. Gov. Tony Evers, a Democrat who is seeking reelection this year, supports abortion rights. Republicans control both chambers of the state legislature, but they do not have veto-proof majorities.
An 1849 law that is still on Wisconsin's books prohibits abortion except when necessary to save a pregnant woman's life. "I don't know if [the pre-Roe ban] is enforceable or not, but there isn't going to be anyone who performs abortion in Wisconsin for the time being because they don't want to take the risk," Lester Pines, founder and senior counsel at the Pines Bach law firm, told the Milwaukee Journal Sentinel. "The practical effect of this is, for the time being, women in Wisconsin who are seeking abortions will go to Illinois or Minnesota."
According to the Wisconsin Legislative Council, the Journal Sentinel says, the enforceability of the 1849 law is "a question that likely won't be answered definitively until a judge opines on the matter." The paper notes that "some legal experts believe subsequent abortion statutes repealed the original 1849 law."
Wyoming
Abortion will be severely restricted. This year Wyoming enacted a trigger law that prohibits abortion except in cases of rape or incest, or when continuing a pregnancy poses a "serious risk" of death or "substantial and irreversible physical impairment of a major bodily function." The ban takes effect within 30 days of Roe's reversal, upon certification by the governor based on the attorney general's advice.
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As the experience in Texas shows, banning abortion is not the same as eliminating it. Even with abortion bans in Oklahoma, Arkansas, and Louisiana, Texas women can still travel to clinics in New Mexico, Colorado, or Kansas. They can also obtain abortion pills online, over the counter in Mexico, or in states where they remain legal.
Such workarounds entail additional costs, risks, and burdens, which will be especially daunting for women of modest means who live far from states where abortion remains legal. "A post-Roe United States isn't one in which abortion isn't legal at all," Middlebury College economist Caitlin Knowles Myers observed in an interview with The New York Times. "It's one in which there's tremendous inequality in abortion access."
The new obstacles will prove prohibitive in many cases, but not most. Research suggests that something like 80 percent of the women covered by the Texas "heartbeat" law managed to obtain abortions anyway. Last year, based on a scenario in which 22 states banned abortion, Myers projected that the annual number of abortions in the U.S. would fall by about 14 percent.
While Americans who view abortion as tantamount to murder will certainly welcome that sort of accomplishment, it is a far cry from the goal that pro-life activists have pursued since 1973. And while pro-choice activists are understandably dismayed when anyone is forced to continue an unwanted pregnancy, their outrage and energy can be channeled into efforts to address the inequality that Myers decries by helping women overcome the barriers that Dobbs allows states to erect.
*CORRECTION: This post originally misidentified the Democratic candidate for governor of Pennsylvania.
[This post has been updated with additional information about the pre-Roe abortion bans in Michigan and Wisconsin.]
The post Here Is a State-by-State Rundown of What Will Happen Now That SCOTUS Has Freed Lawmakers To Restrict Abortion appeared first on Reason.com.
