Q: What would happen if the Supreme Court overturned Roe v. Wade?
A: Some states would outlaw abortion but others would not.
What would happen if the Supreme Court overturned Roe v. Wade? Would abortion be illegal or would it mean that the states get to decide? If the latter, are there any estimates of how many states would declare abortion illegal?
The Roe v. Wade decision in 1973 made abortion legal nationwide, but overturning Roe would not mean a nationwide ban on the practice. Rather, it would give jurisdiction back to the states, each of which would be able to decide whether or not to allow abortion within its borders.
What would the states likely do if the ban were lifted? The Guttmacher Institute, an organization whose research is cited by both sides of the debate, says that 20 states currently have laws on the books "that could be used to restrict the legal status of abortion” in the absence of Roe v. Wade. The 20 fall into four overlapping categories:
- 4 states have passed laws that would immediately outlaw abortion if Roe were overturned (Louisiana, Mississippi, North Dakota and South Dakota).
- 7 have laws expressing their intent to restrict access to legal abortion in the absence of Roe (Arkansas, Illinois, Kentucky, Louisiana, Missouri, North Dakota and Ohio).
- 2 states have passed new abortion bans since 1973 which have been declared unconstitutional (Louisiana and Utah).
- 13 states retain their pre-Roe abortion bans, which are currently unenforceable (Alabama, Arizona, Arkansas, Colorado, Delaware, Massachusetts, Michigan, Mississippi, New Mexico, Oklahoma, Vermont, West Virginia and Wisconsin).
Of course, some states that still have pre-Roe abortion bans may reconsider them should Roe fall. And indeed, that’s likely to happen at least in Massachusetts, Vermont and West Virginia, according to the pro-abortion-rights group Center for Reproductive Rights. These states all have constitutional or statutory protection for abortion, indicating that they will not enforce their old bans if Roe is overturned.
The Center for Reproductive Rights also predicts that some states that don’t have bans now will institute them if the Supreme Court gives them the authority. In all, the center estimates that 21 states are likely to outlaw abortion immediately. This assessment is based not only on current law, but on the political makeup of the state legislatures.
According to the center, those states are: Alabama, Arkansas, Colorado, Delaware, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia and Wisconsin.
On the other hand, abortion is likely to remain legal in many states, according to these groups. Seven states already have specific laws protecting the right to abortion, with or without Roe, according to Guttmacher. The Center for Reproductive Rights identifies 20 states in which legal abortion would likely be preserved: Alaska, California, Connecticut, Florida, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Vermont, Washington, West Virginia and Wyoming. The remaining nine states, according to the Center, are at "middle risk" of an abortion ban.
Before Roe, only four states had repealed their abortion bans, and another 13 had revised their abortion laws to allow the procedure in some cases.
Guttmacher Institute. "State Policies in Brief: Abortion Policy in the Absence of Roe." 1 Apr. 2008.
Gold, Rachel Benson. "Lessons from Before Roe: Will Past be Prologue?" The Guttmacher Report on Public Policy. Mar. 2003.