A leaked draft opinion indicated that the Supreme Court is ready to abolish the 1973 Roe v. Wade decision establishing a constitutional right to abortion. The draft isn’t final, but what happens if the court decides that Roe “must be overruled” and the issue of abortion returned “to the people’s elected representatives,” as the draft said?
Jurisdiction would go back to the states, likely setting up a patchwork of abortion restrictions and rights across the country. Roe v. Wade said states couldn’t limit abortion before a fetus is viable, or able to survive outside the womb, which is generally considered to be at about 24 weeks of gestation. But state laws have sought to challenge the point of viability or the standard itself.
The draft decision, obtained by Politico, pertains to Dobbs v. Jackson Women’s Health Organization, a lawsuit over Mississippi’s ban on abortion after 15 weeks of gestation, “except in medical emergency and in cases of severe fetal abnormality.” The state law was blocked from taking effect by lower courts, and the Supreme Court heard arguments on Dec. 1.
The latest abortion surveillance report from the Centers for Disease Control and Prevention said in 2019, “nearly all” abortions — 92.7% — occurred by 13 weeks’ gestation or less; 79.3% occurred by nine weeks’ gestation.
The draft, written by Justice Samuel Alito, is authentic, the high court said in a May 3 statement, noting that circulating draft opinions was a “routine” part of the court’s work and that this one didn’t represent “the final position” of any justice.
What states would heavily restrict or ban abortion?
The Center for Reproductive Rights, an advocacy and legal group supporting abortion rights, brands 25 states as “hostile” to abortion rights, saying they would be likely to prohibit or severely restrict abortion, or make it difficult to get one. The Guttmacher Institute, a reproductive health research group, counts 26 states as “certain or likely to ban abortion” under all or most circumstances or early in the gestation period, such as abortions after six weeks of pregnancy.
Nine states have pre-Roe abortion bans on the books that could take effect, if Roe is overturned, unless state legislatures act to pass a new law, according to the Guttmacher Institute. Those states are: Alabama, Arizona, Arkansas, Michigan, Mississippi, North Carolina, Oklahoma, West Virginia and Wisconsin. Most of them include exceptions in cases where the life of the patient is in danger.
“If Roe is overturned, these laws could be revived in one of two ways,” the Center for Reproductive Rights says of pre-Roe bans. “In some states, a ban was never declared unconstitutional or blocked by the courts, and therefore if Roe is limited or overturned, state officials could seek to enforce it. In other states, where courts have blocked or limited a pre-Roe ban based on the decision, officials could file court actions asking courts to activate the ban if Roe fell.”
Thirteen states have passed so-called “trigger laws” after Roe to ban abortion if Roe is overturned. Those states include Idaho, Kentucky, Louisiana, Missouri, North Dakota, South Dakota, Tennessee, Texas, Utah and Wyoming — as well as three of the states that also have pre-Roe bans.
Seven states have laws that “[e]xpressed intent to limit abortion to maximum extent permitted” in the absence of Roe, the Guttmacher Institute says. Kansas and Ohio are the only two among them that also don’t have “trigger laws” or pre-Roe bans enacted.
In addition, some states had passed laws restricting abortion that were unconstitutional under Roe, but could take effect in a post-Roe world. Beyond states in the above categories, that includes Georgia, Iowa and South Carolina.
The Center for Reproductive Rights includes two more states — Indiana and Pennsylvania — on its “hostile” list, saying it is difficult to access abortion in both states. And Guttmacher includes Florida, Montana and Nebraska as other states that have enacted bans on abortion or certain methods of abortion after 15 or 20 weeks’ gestation.
What states would protect abortion rights?
According to the Guttmacher Institute, 16 states and the District of Columbia have laws protecting the right to an abortion. They are: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington state and Washington, D.C.
An estimated 125 million people — 38% of the U.S. population — live in areas with laws protecting abortion rights, based on July 2021 Census population estimates for states and the District of Columbia.
A decade ago, only seven states had such laws on the books, Guttmacher said in an April 1, 2012, report. But more state legislatures have been taking up the issue in anticipation of a possible reversal of Roe v. Wade. New Jersey Gov. Phil Murphy, for example, signed a law in January that permits abortions throughout pregnancy.
“With Roe v. Wade under attack, today’s historic legislation makes clear that New Jersey’s position in supporting the right to reproductive choice remains protected,” Murphy said in a statement on the day he signed the Freedom of Reproductive Choice Act.
New Jersey is now one of only four states that permit abortion “throughout pregnancy without state interference,” Guttmacher says. The others are — Colorado, Oregon and Vermont, plus the District of Columbia.
The remaining 12 states protect the right of abortion “prior to viability or when necessary to protect the life or health of the pregnant person,” according to Guttmacher.
Three states – New Hampshire, New Mexico and Virginia — haven’t enacted legal protections for abortion rights, but they also aren’t likely to restrict or ban abortion, according to the Center for Reproductive Rights.
Update, May 5: We added information on Alaska and Minnesota.
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