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George Washington University Law School professor Jonathan Turley testifies before a House committee on June 29, 2020. (AP) George Washington University Law School professor Jonathan Turley testifies before a House committee on June 29, 2020. (AP)

George Washington University Law School professor Jonathan Turley testifies before a House committee on June 29, 2020. (AP)

Louis Jacobson
By Louis Jacobson June 27, 2022

The complicated calculation to determine what share of the population will retain abortion rights

If Your Time is short

• Nearly 38% of the population lives in states that have “already protected abortion rights” by affirmatively passing laws to keep abortion legal in the absence of Roe.

• Another 39% lives in states that have passed laws banning abortion and that are moving toward going into effect after the overturning of Roe. 

• Turley said he reached his conclusion by looking at the population in the states that are left once the states that have laws on the books banning abortion are removed from the equation. Including the states that have already acted to keep abortion legal, this leaves 61% of the population — a majority — living in a state where, for now at least, the overturning of Roe isn’t changing the legal status of abortion.

• In many of the states making up this 61% majority, abortion is not actually “protected” by a law but rather by the principle that something not affirmatively banned is presumed to be legal.

Shortly after the Supreme Court struck down Roe v. Wade, the decision that protected the right to abortion nationally, George Washington University law professor Jonathan Turley cautioned in an interview with Fox News that the immediate impact would be modest.

"The majority of citizens in the country will have no change at all because … most of the population resides in states that have already protected abortion rights," Turley said June 24, the day of the decision.

Whether he’s right depends on the definition of "already protected."

By overturning Roe, the Supreme Court allowed states to decide for themselves whether to allow or prohibit abortion. In advance of the ruling, numerous states had either passed laws to preemptively protect abortion rights within their borders or passed "trigger laws" to outlaw the procedure if the court were to overrule Roe.

In all, 16 states plus the District of Columbia 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.

Collectively, these states account for 125.7 million residents, or 37.9% of the nation’s population of 331.4 million people as calculated by the 2020 Census.

So by this standard of affirmatively acting to keep abortion legal — which would seem to be in line with Turley’s phrasing of "states that have already protected abortion rights" — he would be incorrect, since 37.9% is not equivalent to "most of the population."

However, Turley told PolitiFact that he wasn’t using this as his definition. Rather, he was referring to the states that are left once the states that are banning abortion are removed from the equation.

The core group of states in this category are those that passed "trigger laws" to ban abortion in the event that Roe was overturned. This includes 13 states: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. The implementation timeline varies by state, but each of the 13 should have laws against abortion in place within weeks, if not sooner.

Collectively, these 13 states account for 20.7% of the U.S. population.

However, there are other states that can also ban abortions through existing laws.

States that banned abortion pre-Roe

Some states have laws predating Roe, often by decades, that could "snap back" to ban abortions in the absence of Roe’s protections. The five states in this category are Alabama, Arizona, Michigan, West Virginia and Wisconsin. These states account for another 9% of the population.

Legal challenges to these old laws are expected, so the banning of abortion in these states may not be as swift or as certain as it is in the trigger-law states. Still, even if abortion remains legal in these states pending court challenges, it would be inaccurate to describe these five states using Turley’s phrasing — "states that have already protected abortion rights."

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States with abortion laws that had been blocked by courts

Then, there are states that have passed abortion bans that had been blocked by the courts during the period when Roe was in place. These laws would likely be allowed to go into effect now that Roe is gone, though that process may take some time. 

Four states fall into this category: Georgia, Iowa, Ohio and South Carolina. Together, they account for another 9.3% of the population.

All told, states that are potentially on a path to outlawing abortion include up to 39% of the U.S. population. 

The flip side of this figure — and this is where Turley has a point — is that 61% of the population lives in states where abortion is poised to remain legal, at least in the short term. That’s because something not affirmatively banned is presumed legal. 

In many of these states, abortion is not actually "protected" by a law, to use Turley’s term. While abortion remains legal for now in these states, a law banning it could be passed at any time without having to repeal a law protecting abortion.

Twelve states have neither explicitly protected abortion through a law nor do they have laws on the books that would ban abortion after the overturning of Roe. And they are a mixed bag politically. 

Some are generally blue or purple in their political orientation and are expected to keep abortion legal. These include Minnesota, New Hampshire and New Mexico. Others are strongly Republican and could pass laws in fairly short order to ban abortion if they wished, including Indiana, Montana and Nebraska.

Other states where the future of abortion rights is unclear are solidly in the purple category and could see heated legislative sparring over abortion, including Pennsylvania and North Carolina.

Ultimately, whether a majority of Americans end up living in states with or without legal abortion will depend on how these 12 states divide on this issue.

Our ruling

Turley said, "The majority of citizens in the country will have no change at all because … most of the population resides in states that have already protected abortion rights."

We found that 38% of the population lives in states that have "already protected abortion rights" in the sense that they affirmatively passed laws to keep abortion legal in the absence of Roe.

At the same time, another 39% of the population lives in states that have passed laws banning abortion and that are poised to go into effect with the overturning of Roe. 

This leaves 61% of the population — a majority — living in a state where, for now at least, the overturning of Roe isn’t changing the legal status of abortion. In many of these states, abortion is not actually "protected" by a law but rather by the principle that something not affirmatively banned is presumed to be legal.

We rate the statement Half True.

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The complicated calculation to determine what share of the population will retain abortion rights

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