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- Now that the Supreme Court has overturned Roe v. Wade, the rules governing abortion revert to the states.
- All told, 16 states, largely Democratic-led, have protected access to abortion by passing laws to do so. Another 18 states, many but not all Republican-led, either have pre-Roe laws against abortion that will snap back into effect, or passed “trigger” laws to block abortion access once was Roe was overturned.
- In nine other states, Republican majorities are expected to pursue abortion bans, though with an uncertain likelihood of success. And in the remaining seven states, the future legal status of abortion is unclear due to conflicting legal and political currents.
- With states empowered to address abortion in a post-Roe world, battles over abortion policy will be hard-fought in the states.
Now that the Supreme Court has overturned Roe v. Wade, the decisions about whether to permit abortion revert to the states. So what happens now?
"What seems clear is there will be a checkerboard effect," with some states allowing abortion said Carl Tobias, a University of Richmond law professor.
Sixteen states plus the District of Columbia have passed laws directly allowing access to abortions: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington. (The laws in these states vary as to whether abortion is allowed through fetal viability or through an entire pregnancy.)
More states — 18 in all — will see abortion become illegal, if not immediately, then soon.
These states either have pre-Roe laws restricting abortion that snap back into effect if Roe is overturned, or they have "trigger" laws that were written to take effect in the absence of Roe.
These states are Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming.
All of these states leave an exception if the life of the mother is threatened or in case of "medical emergency," but many do not provide exceptions for other instances that have wide support, such as rape or incest.
The "trigger" laws are written differently, with some taking effect immediately and others with certain delays. Even in states where the law is supposed to go into effect immediately, it’s unclear whether there might be any delays.
"This will depend substantially on how federal judges address the challenges that plaintiffs will pursue, and the preliminary rulings they seek to enjoin the operation of these trigger laws," Tobias said. "If judges provide this type of relief, the issue could be tied up in litigation for some time, during which it is possible that abortions could be performed."
States in which old laws snap back into force might see a more immediate effect, Tobias said, although "perhaps these could be challenged" in court, too.
Of the remaining 16 states, four — Georgia, Iowa, Ohio and South Carolina — could see abortion prohibitions in effect fairly soon. That’s because, in each of those states, a law banning abortion had been blocked in the courts. With the reversal of Roe, those blocked laws could spring back into effect.
Another six states lack laws clearly permitting or prohibiting abortion, so in those states, the issue will likely become subject to intense political activity.
In five of them — Florida, Indiana, Kansas, Montana and Nebraska — Republicans control the state legislature and the state voted Republican in the 2020 presidential election. All but Kansas also have Republican governors. So the enactment of an abortion ban in these states is plausible in the near future.
The sixth state in this category is Minnesota, which voted Democratic in the 2020 presidential election and has a Democratic governor and partial Democratic control of the legislature. This suggests that abortion would remain legal in Minnesota for now.
Finally, six states have contradictory legal and political realities that make the future of abortion in these states hard to determine. These states are Alaska, New Hampshire, New Mexico, North Carolina, Pennsylvania and Virginia.
The absence for now of laws banning abortion in these states would suggest that it will remain legal there, at least in the immediate future. "Everything not forbidden is permitted, generally speaking," Eugene Volokh, a law professor at the University of California, Los Angeles, told PolitiFact in May.
Passing laws on abortion, either for or against, undoubtedly will become a major topic of attention among state legislators and governors in the years ahead.
In March, Sabato’s Crystal Ball at the University of Virginia Center for Politics identified at least seven and possibly up to 10 states in which polling shows majority or plurality support among voters for abortion access, yet the possibility that abortion might be severly restricted.
The seven states most likely to face cross-pressures between an electorate generally supportive of abortion access and elected officials who are anti-abortion are: Arizona, Georgia, Michigan, New Hampshire, North Carolina, Pennsylvania and Wisconsin.
There will almost certainly be "huge fights in legislatures over these issues," Tobias said.
State courts, too, will likely be busy adjudicating the reach and limits of state laws.
"There will doubtless be fights in many states that have abortion restrictions, both as to whether the state constitution protects the right to abortion, and as to how the state laws should be interpreted," Volokh said.
Older, pre-Roe laws may be more open to legal attack on grounds such as vagueness, but "lots of new laws in all sorts of areas are also badly drafted" and could give abortion-rights advocates room for legal challenges, Volokh said.
Oyez, Roe v. Wade, accessed May 3, 2022
National Conference of State Legislatures, "State Abortion Laws in the Absence of Roe v. Wade," June 20, 2022
Guttmacher Institute, "Abortion policy in the absence of Roe," April 4, 2022
National Right to Life Committee, "The state of abortion in the United States," January 2022
Sabato’s Crystal Ball, "Abortion battlefields in a potentially post-Roe political world," March 10, 2022
Email interview with Carl Tobias, University of Richmond law professor, June 24, 2022
Email interview with Eugene Volokh, law professor at UCLA, May 3, 2022