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As of May 1, 2018 State Laws and Policies

Abortion Policy in the Absence of Roe

Background

The current make up of the U.S. Supreme Court have led some state policymakers to consider the possibility that Roe v. Wade could be overturned and regulation of abortion returned to the states. Some state legislatures are considering banning abortion under all or virtually all circumstances; these measures are widely viewed as an attempt to provoke a legal challenge to Roe, while other states are considering abortion bans that would go into effect in the event that Roe is overturned. And a number of states still have pre-1973 abortion bans on the books—several of which, in theory, could be enforced if Roe were ever overturned. Still other states have laws declaring the state’s intent to ban abortion to the extent permitted by the U.S. Constitution.

Meanwhile, some states are moving in the opposite direction by passing laws that essentially codify the parameters of Roe. These laws prohibit any interference with a woman exercising her right to obtain an abortion before viability or when necessary to protect the life and health of the woman.

Highlights

  • 18 states have laws that could be used to restrict the legal status of abortion.
    • 4 states have laws that automatically ban abortion if Roe were to be overturned.
    • 10 states retain their unenforced, pre-Roe abortion bans.
    • 8 states have laws that express their intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe.
  • 8 states have laws that protect the right to choose abortion prior to viability or when necessary to protect the life or health of the woman.

 

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Topic

United States

Geography

Abortion Policy in the Absence of Roe

STATE

RESTRICTING THE RIGHT TO ABORTION

PROTECTING THE RIGHT TO ABORTION

Bans Abortion Except in Extremely Limited Circumstances

Bans Abortion After 12 Weeks of Pregnancy

Intended to Ban Abortion if Roe Is Overturned

Pre-Roe Abortion Ban Still State Law

Expressed Intent to Limit  Abortion to the Maximum Extent Permitted

Alabama

 

 

 

X†,‡​

 

 

Arizona

 

 

 

X†​

 

 

Arkansas

 

§

 

X

X

 

California

 

 

 

 

 

X

Connecticut

 

 

 

 

 

X

Delaware

 

 

 

 

 

X

Hawaii

 

 

 

 

 

X

Illinois

 

 

 

 

X

 

Kansas

 

 

 

 

X

 

Kentucky

 

 

 

 

X

 

Louisiana

▼

 

X

 

X

 

Maine

 

 

 

 

 

X

Maryland

 

 

 

 

 

X

Massachusetts

 

 

 

X

 

 

Michigan

 

 

 

X†​

 

 

Mississippi

 

 

X

X†,Ψ​

 

 

Missouri

 

 

 

 

X

 

Nevada

 

 

 

 

 

X

New Mexico

 

 

 

XΩ​

 

 

North Dakota

§

 

X*

 

X

 

Ohio

 

 

 

 

X

 

Oklahoma

 

 

 

X†​

 

 

South Dakota

 

 

X

 

 

 

Utah

▼

 

 

 

 

 

Washington

 

 

 

 

 

X

West Virginia

 

 

 

X†​

 

 

Wisconsin

 

 

 

X†​

 

 

TOTAL

 

 

4

10

8

8

▼  Enforcement permanently enjoined by court order; policy not in effect.
§    Enforcement temporarily enjoined by court order; policy not in effect.
†   Law includes an exception to protect the life of the woman.
‡    Law includes an exception to protect the health of the woman.
Ω   Law does not apply in cases when necessary to protect the life of the woman, when necessary to preserve the physical health or mental
      health of the woman, when the pregnancy is the result of rape or incest, or when the fetus may be born with defects.
Ψ   Law includes an exception in case of rape.
*    Law only allows a physician to claim an affirmative defense that the abortion was necessary to protect the life of the woman or in
      cases of rape or incest.

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