Background

Changes to the makeup of the U.S. Supreme Court in 2018 raise the possibility that Roe v. Wade could be severely undermined—or even overturned—essentially leaving the legality of abortion to individual states. A reversal of Roe could establish a legal path for states’ pre-1973 abortion bans, as well as currently unenforced post-1973 bans, to take effect.

Many state lawmakers continue to consider and enact abortion bans that fly in the face of constitutional standards and Roe’s precedent in anticipation of an eventual lawsuit on such a ban coming before a Supreme Court hostile to abortion rights.

Some bans prohibit abortion under all or nearly all circumstances, a tactic widely viewed as an attempt to provoke a legal challenge to Roe. Several of this type of ban that were passed by states have been blocked by court orders and would require further court action to be enforced.

Other bans enacted after Roe are designed to be “triggered” and take effect automatically or by swift state action if Roe is overturned. Several states even have laws declaring the state’s intent to ban abortion to whatever extent is permitted by the U.S. Constitution, making their desire to halt abortion access in the state clear. A few states have amended their constitution to declare that it does not contain any protection for abortion rights or allow public funds to be used for abortion.

Meanwhile, policymakers in some states have approved laws to protect abortion rights without relying on the Roe decision. Most of these policies prohibit the state from interfering with the right to obtain an abortion before viability or when necessary to protect the life or health of the pregnant person.

Highlights

Abortion Policy in the Absence of Roe

State

Restricting the right to abortion

Protecting the right to abortion

 

Unenforced pre-Roe abortion ban

Post-Roe ban intended to take effect if Roe overturned

Unconstitutional, post-Roe restrictions that could take effect if Roe overturned

Expressed intent to limit abortion to maximum extent permitted

Constitution explicitly does not secure right to abortion

Throughout pregnancy

Prior to viability

Alabama

   X†,‡

 

s

 

X

 

 

Arizona

 X

 

 

 

 

 

 

Arkansas

X

 X

s

X

 

 

 

California

 

 

 

 

 

 

X

Connecticut

 

 

 

 

 

 

X

Delaware

 

 

 

 

 

 

X

District of Columbia

 

 

 

 

 

 X

 

Georgia

 

 

s

 

 

 

 

Hawaii

 

 

 

 

 

 

X

Idaho

 

X

         

Illinois

 

 

 

 

 

 

Iowa

 

 

q

 

 

 

 

Kansas

 

 

 

X

 

 

 

Kentucky

 

X

s

X

 

 

 

Louisiana

 

X

q

X

X

 

 

Maine

 

 

 

 

 

 

X

Maryland             X

Massachusetts

 

 

 

 

 

 

X

Michigan

X

 

 

 

 

 

 

Mississippi

   X†,Ψ

X

s 

 

 

 

 

Missouri

 

X

s 

X

 

 

 

Nevada

 

 

 

 

 

 

X

New Mexico

 

 

 

 

 

 

 

New York

 

 

 

 

 

 

North Dakota

 

X

q

X

 

 

 

Ohio

 

 

 s 

X

 

 

 

Oregon

 

 

 

 

 

X

 

Oklahoma

X

 *

 

 

 

 

 

Rhode Island

 

 

 

 

 

 

South Carolina

                            s         

South Dakota

 

X

 

 

 

 

 

Tennessee

 

X

s  

 

 X

 

 

Texas

q

X

 

 

 

 

 

Utah

 

X

q

 

 

 

 

Vermont

 

 

 

 

 

 

Washington

 

 

 

 

 

 

X

West Virginia

X

 

 

 

 

 

Wisconsin

X

 

 

 

 

 

 

TOTAL

8

11

0

7

4

2 + DC

12

q Permanently enjoined by court order; law not in effect.
s Temporarily enjoined by court order; law not in effect.
†   Law includes an exception to protect the life of the patient.
‡   Law includes an exception to protect the health of the patient.
Ψ  Law includes an exception in cases of rape.
*   Oklahoma law is added to the statutes on November 1, 2021 and the Texas law is added on November 1, 2021.