This story was originally published by The 19th on June 24, 2022.
The Supreme Court overturned Roe v. Wade, a landmark case that guaranteed the right to abortion since 1973. States now have the power to ban or otherwise severely restrict abortions if they are not protected by their state constitutions. In some states, the impact will be felt immediately. In other cases, legal questions about access to abortion may drag on for years in the future.
The decision to overturn Rowe, handed down Friday in what is known as Dobbs v. Jackson Women’s Health Organization, has been expected since May, when the draft decision was leaked to Politico.
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The impact of the decision will vary from state to state. But this will no doubt create a patchwork system in which abortion is illegal in much of the country. Here The 19th explains what’s next in states across the country.
Which states have trigger laws? And when will they take effect?
There are currently 13 states with trigger laws, bans written to ban abortion, that will take effect after Roe is ousted. While the mechanisms and timing of these bans vary, they will no doubt soon cut off access to legal abortion in large parts of the country.
Trigger laws appear to take effect immediately in three states: Kentucky, Louisiana and South Dakota.
Five other states require their attorneys general to certify the Supreme Court’s decision before they can begin enforcement: Arkansas, Mississippi, Missouri, North Dakota and Oklahoma. For months, attorneys general’s offices in these states have been preparing for swift action to enforce these bans, and the unambiguous wording of the court’s decision makes swift action even more likely.
In Utah, an independent legislative council must conduct a similar certification; in Wyoming, this role is played by the governor.
In three other states – Idaho, Tennessee and Texas – the abortion ban will go into effect in 30 days. (In Oklahoma and Texas, abortion is no longer available to women over six weeks pregnant.) Only four of those states—Idaho, North Dakota, Mississippi, and Wyoming—have exceptions to their rape laws.
What about the abortion bans that were in the books before Rowe?
Michigan, Alabama, Arizona, West Virginia, and Wisconsin do not have trigger laws, but they all have abortion bans that were in place before Rowe’s decision in 1973 and have never been repealed. Georgia has a pre-Rowe prohibition that was partially overturned by the Supreme Court in 1973 in a different case separate from Rowe.
These laws may be newly enacted, but legal issues are looming and they are likely to be the subject of months or even years of litigation. There is little precedent for enforcing laws that have been blocked for a long time, and experts disagree on whether these bans can go into effect now or will need to be passed through state legislatures again. Michigan’s pre-Row ban has already faced two legal challenges, with a state judge temporarily blocking enforcement of the law. In Arizona, Republican Gov. Doug Ducey has indicated that he does not believe the state’s ban will be enforceable, but other state lawmakers say it should indeed go into effect.
The question marks around what is legal and what is not in these states will certainly cause confusion and uncertainty for both abortion doctors and patients. Legal experts point out that even in states where governors or attorneys general are reluctant to enforce these bans, individual prosecutors or law enforcement officials may try to use them to criminalize abortionists. This means that, even if these prohibitions are ultimately not enforced, the risk of prosecution is likely to deter people from seeking or having abortions, doctors and reproductive health advocates worry.
What about other restrictions on abortion that are not a total ban?
The arrival of Roe’s decision means that other states are likely to impose further restrictions on abortion that would be unconstitutional in Roe v. Wade. Georgia, Ohio, and South Carolina passed a six-week abortion ban that was blocked by federal courts; The governors of all three states said they would enforce these bans. If that were to happen, Florida and North Carolina would be the only states in the Southeast that allow abortions after six weeks. Florida’s 15-week ban, which has been challenged in state court, is currently due to take effect on July 1.
Legislative assemblies of most states completed their work this year. But lawyers and government officials in some states are preparing to unearth old abortion restrictions that were previously blocked by the courts. Now that Rowe is overthrown, they can reopen those cases to further restrict access.
“If you already have those laws that have gone through the legislative process, why not try to enforce them without having to go back?” Cathy Glenn, government relations adviser for anti-abortion lobbying group Americans United Life, told The 19th earlier.
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Ohio, where the legislature is still in session, has been working to pass its own trigger law. And in South Carolina, the Senate has begun the process of recalling its legislature to hold a special session to approve new abortion bans. If the House of Representatives agrees to return to session, they could pass a total ban on abortion this summer. In Nebraska, lawmakers are pressuring their governors to urge legislatures to pass new abortion bans. The Indiana governor has agreed to call a special session in July to address inflation, and lawmakers may also put a ban on abortion on their agenda.
And in Florida, whose 15-week ban was passed earlier this year, some opponents of abortion rights are calling on Republican Gov. Ron DeSantis to bring the legislature back to pass new restrictions. Even if that doesn’t happen this summer, Florida, along with Montana, Iowa and Kansas, is likely to be targeted by abortion restrictions in the coming years, Glenn said.
Which states protect the right to abortion?
In 10 states, the state supreme court has ruled that their constitution guarantees the right to abortion. Later this year, Vermont votes for a constitutional amendment that would explicitly protect abortion rights. Similar amendments may also be supported by voters in Arizona and Michigan.
- New Jersey
- New Mexico
However, in some states, there is little existing protection. In Kansas, voters will vote for an amendment to state constitutions that removes this protection. Similar amendments are put to the vote in Kentucky and Oklahoma. Florida, where the court has moved to the right under DeSantis, is expected to soon revoke its own state guarantee of abortion rights. The Iowa Supreme Court has upheld the right to abortion until this month; On June 17, he issued a new ruling revoking this protection.
In addition to constitutional rights, a dozen states have passed laws codifying the right to have an abortion until the fetus can live independently outside the womb.
- New York
- Rhode Island
Four more states plus the District of Columbia have adopted laws protecting the right to abortion during pregnancy. (Because the District of Columbia is not a state, some local officials are concerned that the Republican-controlled Congress might try to ban abortion in the capital.)
- New Jersey