21 states poised to ban or severely restrict abortion if Roe v. Wade is overturned
When the Supreme Court hands down its decision in a highly-watched Mississippi abortion case this summer, access to legal abortion could end for more than 100 million Americans, including those living in nearly every Southern state and large swaths of the Midwest.
Twenty-one states are poised to immediately ban or acutely curtail access to abortions if the Supreme Court chooses to overturn or weaken Roe v. Wade, the landmark 1973 decision that for nearly 50 years has guaranteed women's right to seek an abortion, according to the Guttmacher Institute, a research group in favor of abortion rights.
At the crux of the legal argument made by the state of Mississippi, which is seeking to overturn Roe, is that the U.S. Constitution is neutral on the matter of abortion — meaning the power to regulate it should rest in the hands of individual states.
"When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people," said Mississippi solicitor general Scott Stewart during Wednesday's oral arguments over the case, which is known as Dobbs v. Jackson Women's Health Organization.
If the court's conservative majority agrees — its ruling is expected this summer — so-called "trigger laws" would take effect and automatically ban or curtail abortion in 12 states. In another nine states, pre-Roe abortion bans could once again become enforceable, or more recent bans that had been blocked by courts could take effect.
Most trigger laws were enacted during the Trump administration
Details of trigger laws vary by state, but all of them become automatic upon the overturning of Roe v. Wade. Most would ban abortion outright with limited exceptions — like medical emergencies or in cases of rape and incest. They are currently in place in Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas and Utah.
Most were enacted during the Trump administration, after conservatives Neil Gorsuch and Brett Kavanaugh were confirmed to the Supreme Court.
Those appointments emboldened Republican-led state legislatures to pass abortion bans with the hopes of prompting a more conservative Supreme Court to gut Roe v. Wade — including the Mississippi bill at issue before the court, which would ban abortion after 15 weeks, some nine weeks before the point of fetal viability that Roe and later decisions hinge upon.
"Whether you're for abortion or against abortion, set that aside for a moment. There is no right within the Constitution to take away from the states their authority in the democratic process to prohibit abortion," said former Mississippi governor Phil Bryant, who signed the law in 2018, speaking this week in an interview with NPR.
In addition to the trigger laws, nine states still have abortion bans on the books that were enacted before Roe was decided in 1973. Those states — four trigger law states along with Alabama, Arizona, Michigan, West Virginia and Wisconsin — could choose to immediately begin enforcement.
And four other states — Georgia, Iowa, Ohio and South Carolina — passed so-called "heartbeat" laws in recent years that ban abortion after cardiac activity is detectable, which can be as early as six weeks into a pregnancy. All four laws are currently blocked by courts, but injunctions could be lifted if the Supreme Court overturns Roe.
A dramatically different landscape
In effect, abortions could soon be illegal or next to impossible to access in these 21 states, with a combined population of more than 135 million people — a major change from today's environment, where all 50 states have at least one operating abortion clinic.
The result would be "incredible chaos and devastation," said Hillary Schneller of the Center for Reproductive Rights, one of the lead attorneys representing Jackson Women's Health Organization, the Mississippi abortion clinic at the center of the case.
"In states across the South and Midwest, it would force people who have the means to travel to a place where abortion remains legal. But many people on low incomes [and] communities of color who are already challenged in getting access to abortion won't be able to actually make that happen," Schneller said.
Opponents of abortion rights point out that abortion would remain legal in much of the rest of the nation, including 15 states, mostly in the West and Northeast, that have laws explicitly permitting abortion.
Two states — Oregon and Vermont, along with the District of Columbia — expressly allow abortion after the point of fetal viability.
"The reversal of Roe will not make abortion illegal," said Mario Díaz, who serves as general counsel for the Concerned Women for America, an organization that opposes abortion rights.
"We're asking them to recognize that the Constitution doesn't speak about it and return the power to the people. And then that will give us laws around the states that reflect what the people believe," he said.
If the court overturns Roe, other Republican-led states that do not currently have a more restrictive abortion ban on the books — like Florida, Indiana, Montana and Nebraska — may move swiftly to enact one. Residents of battleground states like Pennsylvania may be thrown into a state of uncertainty as state legislators battle over whether to enact restrictions.
"Whether or not you have access to safe, essential, medically necessary care is going to depend wholly on where you live in the country and what kind of resources you have access to," said Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health, a pro-abortion rights organization.
And the efforts to ban abortion nationwide are not likely to end with the court's decision in Dobbs, said Mary Ziegler, a Florida State University professor who studies abortion law.
"Even if the Supreme Court isn't going to be open to that argument immediately, we should expect to see anti-abortion groups pressing it in the years to come," Ziegler said, speaking to NPR ahead of the court's fall term. [Copyright 2021 NPR]
