Roe V Wade Comes Before The Supreme Court Today, 26 States Are Certain or Likely to Ban Abortion Without Roe
On December 1, 2021, the U.S. Supreme Court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization, a case on the constitutionality of Mississippi’s 15-week abortion ban that will specifically address whether a state can ban abortion before viability (generally 24–26 weeks of pregnancy). The Supreme Court taking this case at all is a stunning development. Still, the state of Mississippi has gone even further and asked the Court to overturn outright Roe v. Wade, the 1973 case that affirmed a constitutional right to abortion.
Five justices said that Roe v Wade was wrongly decided on; it was a judicial overreach. To rule that the right to privacy gave the right to abortion is twisting the constitutional right to privacy.
It is far from a foregone conclusion that the Court will cast aside five decades of precedent to overturn Roe and allow states to ban abortion. However, by even accepting the case, the Court has signaled that it is willing to revisit the legality of abortion. Furthermore, the Court’s September 1 decision to decline to block an unconstitutional six-week abortion ban in Texas (S.B. 8) from going into effect may be an indicator of its intent.
States Certain to Ban Abortion
If Roe were overturned or fundamentally weakened, 21 states have laws or constitutional amendments already in place to make them certain to attempt to ban abortion as quickly as possible. Anti-abortion policymakers in several of these states have also indicated that they will introduce legislation modeled after the Texas six-week abortion ban.
By the time the Supreme Court hears oral arguments in the Mississippi case, there will be nine states with an abortion ban still on the books from before Roe v. Wade, 12 states with a trigger ban tied to Roe being overturned, five states with a near-total abortion ban enacted after Roe, 11 states with a six-week ban that is not in effect and one state (Texas) with a six-week ban that is in effect, one state with an eight-week ban that is not in effect and four states whose constitutions specifically bar a right to abortion. Some states have multiple types of bans in place.
Pre-Roe ban: Law enacted before 1973 and never removed
“Trigger” ban: Law designed to be “triggered” and take effect automatically or by quick state action if Roe no longer applies
Near-total ban: Law enacted after Roe to prohibit abortion under all or nearly all circumstances (several of this type are currently blocked by court order)
Six-week ban: Law bans abortion after six weeks of pregnancy (one in effect)
Eight-week ban: Law prohibiting abortion after eight weeks of pregnancy (none in effect)
State constitution bars protection: Constitution amended to prohibit any protection for abortion rights
- Alabama—Pre-Roe ban, Near-total ban, State constitution bars protection
- Arizona—Pre-Roe ban
- Arkansas—Pre-Roe ban, Trigger ban, Near-total ban
- Georgia—Six-week ban
- Idaho—Trigger ban, Six-week ban
- Iowa—Six-week ban
- Kentucky—Trigger ban, Six-week ban
- Louisiana—Trigger ban, Near-total ban, Six-week ban, State constitution bars protection
- Michigan—Pre-Roe ban
- Mississippi—Pre-Roe ban, Trigger ban, Six-week ban
- Missouri—Trigger ban, Eight-week ban
- North Dakota—Trigger ban, Six-week ban
- Ohio—Six-week ban
- Oklahoma—Pre-Roe ban, Trigger ban (effective November 1, 2021), Near-total ban, Six-week ban
- South Carolina—Six-week ban
- South Dakota—Trigger ban
- Tennessee—Trigger ban, Six-week ban, State constitution bars protection
- Texas—Pre-Roe ban, Trigger ban, Six-week ban
- Utah—Trigger ban, Near-total ban
- West Virginia—Pre-Roe ban, State constitution bars protection
- Wisconsin—Pre-Roe ban
States Likely to Ban Abortion
An additional five states have political composition, history, and other indicators—such as recent actions to limit access to abortion—that show they are likely to ban abortion as soon as possible without federal protections in place.
- Florida—In 2021, the state legislature attempted to ban abortion at 20 weeks of pregnancy and an effort to adopt a Texas-style six-week ban has already been publicized.
- Indiana—In the past decade, the legislature has enacted 55 abortion restrictions and bans, paving the way for a comprehensive ban.
- Montana—For the first time in nearly a decade, new abortion restrictions were enacted in 2021, including restrictions on medication abortion and abortion at 20 weeks of pregnancy. (These restrictions currently cannot be enforced due to a court order.)
- Nebraska—Although not one of the most prolific states on enacting abortion restrictions, it was the first to adopt a 22-week ban (in 2010), and in 2020, enacted a ban on the standard method for abortion after 15 weeks.
- Wyoming—In 2021, new restrictions on abortion were enacted and a six-week abortion ban was seriously considered by the legislature.
Beyond the 26 states certain or likely to attempt to ban abortion immediately, other states have demonstrated hostility toward abortion by adopting multiple restrictions in the past but are not expected to ban abortion in the near future. However, this analysis may change in the next few years.
It is also important to remember that Roe would not have to be overturned entirely to start the process of activating some trigger laws. If the Court weakens or undermines existing federal constitutional protections, that may be enough momentum for states to begin implementing these bans.
One can hope that Roe v Wade goes the way of other Judicial overreaches; the good news is that the courts can remedy this.
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