A Citizen's Guide To Hell: US Abortion Laws After Roe
With the US Supreme Court preparing to overturn the 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions, the right to abortion will quickly be eliminated in more than half the states in the US. Assuming that the general shape of the draft opinion leaked to Politico remains in place, the Court isn't prepared to preserve any protections at all for those seeking abortions, either: No mandate to include exceptions for rape, incest, or even to save the life of the pregnant person, so those will also be left up to the states.
Further, as the Washington Post reported Monday, even before the Politico story broke, Republicans are already planning a national abortion ban (free link) for whenever they retake both houses of Congress and the presidency. Any states that have moved to protect the right to abortion will only be safe havens for the rest of the country until a minority of Americans produce a Republican majority in the Electoral College. With voting restrictions, gerrymanders, and the built-in Senate advantage for small states, a minority of Americans could also vote in a Republican takeover of Congress, too.
Red States, You Sound Triggered
As the Guttmacher Institute details, 26 states are likely to move quickly to ban most abortions once the Supreme Court overturns Roe. It's a certainty in 22 states, which have various combinations of pre-Roe abortion bans, "trigger" laws that would ban most abortions as soon as the SCOTUS rules, and laws passed after Roe (several of which have been put on hold by federal courts). It's extremely likely in another four states that have a long history of anti-abortion legislation, but which still have to pass laws that would snap a ban into place once Roe falls. A few other states might join them or not, too, depending on upcoming elections.
Here's a more detailed overview of the types of abortion bans; keep in mind that several of the states are so eager to force people to give birth that they have passed multiple forms of abortion restrictions.
- Nine states never repealed their pre-Roe abortion bans, which have gone unenforced since 1973.
- 13 states have passed "trigger" laws that would ban most abortions and which will go into effect the moment Roe is overturned.
- Nine states have passed abortion restrictions that are unconstitutional under Roe, and have been blocked by courts. Those laws could go into effect with a simple court order once the Supreme Court eliminates Roe.
- Seven states have slightly more wiggly versions of trigger laws, which "express the intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe." Once a ruling is in place, those states would quickly pass legislation banning abortion as strictly as possible.
- Four states have constitutional amendments that declare the right to abortion is not protected under the state constitution. Those are aimed at heading off any challenges to abortion restrictions in state courts once Roe is gone.
For a breakdown of how those various mechanisms have been enacted in the 22 states, see here, keeping in mind that some states have multiple anti-abortion laws. Disturbingly, several of them lack any exceptions for rape or incest, although nearly all include an exception to save the life of the pregnant person.
In addition to those states, Guttmacher notes, another four states are almost certain to ban nearly all abortions the moment they can, based on their history of anti-abortion laws: Florida, Indiana, Montana, and Nebraska. North Carolina has a pre-Roe abortion ban still on the books, but "it is unclear if the state’s law would be implemented quickly."
Also of note: Michigan has a 1931 law banning all abortions, with no exceptions at all (not even to save the life of the pregnant person). It would technically go back into place when Roe is overturned, but Gov. Gretchen Whitmer has sued in state court to have it declared in violation of Michigan's state constitution. In addition, state Attorney General Dana Nessel has stated several times that even if Roe is overturned, she would not enforce the 1931 law. The county prosecutors in seven Michigan counties have also stated support for overturning the 1931 law, adding that they will not enforce it either if Roe falls. That includes the prosecutors for the state's most populous two counties, Wayne and Oakland, which include much of the Detroit metro area.
On the pro-choice side, 16 states and the District of Columbia have laws or constitutional provisions protecting the right to abortion. Four of those states protect abortion rights throughout pregnancy, and another 12 permit abortions through fetal viability, or at any time to protect the pregnant person's life or health.
But Wait, It Could Get Even Worse
In the states that don't ban abortion outright, right away, the post-Roe environment could still include more severe restrictions on abortion in some states, depending on what happens in coming elections and legislative sessions. But even the states that have explicit protections for abortion could find their laws overruled if Republicans get the next item on their wish list, a national law banning abortion. (Free Washington Post linky for you.)
The Post reports that once Roe is gone, the goal will shift from winning legal battles to electing a Republican majority in Congress and a GOP president, so that a national ban can be passed. None of this permissive stuff allowing abortions up to 15 weeks, as in the Mississippi law that the Supremes are planning to uphold; if the complete extirpation of Roe and Casey in Samuel Alito's draft holds up, there won't really be any protections left for abortion rights at all, so opponents of abortion will doubtless seek the most restrictive law they can possibly pass.
The Post article, written before the leak of the draft, suggests that something like Texas's bill banning abortion at six weeks might become the national standard:
While a number of states have recently approved laws to ban abortion after 15 weeks of pregnancy [...] some activists and Republican lawmakers now say those laws are not ambitious enough for the next phase of the antiabortion movement. Instead, they now see the six-week limit — which they call “heartbeat” legislation — as the preferred strategy because it would prevent far more abortions. [...]
A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford (Okla.), who was in attendance and said he would support the legislation. Sen. Joni Ernst (R-Iowa) will introduce the legislation in the Senate[.]
And what the hell, depending on the exact language of the final Supreme Court decision, there's little reason to think Republicans would even stop there if they can get the votes in both houses and a president who'll sign it.
The story notes that Marjorie Dannenfelser, president of the extreme anti-abortion group "Susan B. Anthony List," has been meeting with likely GOP presidential candidates to persuade them to support a national abortion ban.
Most of them, she said in an interview, assured her they would be supportive of a national ban and would be eager to make that policy a centerpiece of a presidential campaign.
That includes Donald Trump, of course, who'll support anything that he thinks will get rightwing votes, including, we assume, public executions of doctors and nurses, and maybe those seeking abortions. He'll just float that as a "joke," because he has such a great sense of humor.
The Post article notes, presumably for the sake of hollow mordant laughs, that a national abortion ban would
be extraordinarily difficult to pass, particularly given the need for 60 votes in the Senate to overcome a filibuster under current rules. Such a measure would encounter resistance from nearly all Democrats in addition to a handful of Republicans, who might raise questions about its constitutionality.
We think it's really cute they'd write a paragraph assuming the filibuster would last five minutes in a GOP-controlled Senate that smelled the chance of eliminating abortion rights with a simple majority.
And yes, the story does note that any move to impose a national abortion ban "could ignite liberal activists who would be energized to push back against the prospect." And sure, it would.
But again, with the Supreme Court signaling its readiness to allow any and all restrictions on abortion, and to throw out the very idea that the Constitution includes a right to privacy, there's little reason to think that Republicans won't push for the most extreme limits possible if they can manage even a single term in control of the other two branches of government. How long would such a ban last? Maybe only until the election of a new president and Congress.
But why would Republicans risk that happening, either? Plenty are already finished with democracy, and if an autocracy is needed to save the babies, all the more reason to go full Republic of Gilead.
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Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.