The state-by-state impact of overturning Roe with Kavanaugh on the Supreme Court

The state-by-state impact of overturning Roe with Kavanaugh on the Supreme Court

Right-wing media claim that letting states regulate abortion isn’t a threat for reproductive rights -- it is.

››› ››› JULIE TULBERT

Following President Donald Trump’s nomination of Brett Kavanaugh to the Supreme Court, right-wing media downplayed the impact that Kavanaugh -- who has a stamp of approval from the conservative Federalist Society -- would have on abortion rights in the United States. Some media outlets and figures claimed that if Roe v. Wade was overturned, it would merely return abortion regulation “to the states” and have a minimal impact on abortion rights. Here’s a state-by-state guide to what a world without Roe would look like, as reported in the media, if and when Kavanaugh casts the deciding vote.


Melissa Joskow / Media Matters

Right-wing media inaccurately claim that it’s no big deal if abortion regulation goes back to the states

President Donald Trump nominated Brett Kavanaugh to the Supreme Court -- Kavanaugh will likely vote to restrict or overturn the abortion protections of Roe. In July 2018, President Donald Trump nominated Brett Kavanaugh for a Supreme Court seat following Justice Anthony Kennedy’s announcement that he was retiring from the bench. Kavanaugh’s record indicates that he would likely be a fifth vote, if confirmed, to either rollback or overturn Roe v. Wade, the decision that established protection for abortions rights in the United States. [Slate, 7/9/18]

Right-wing media claimed Kavanaugh’s nomination would have a minimal impact on abortion rights -- saying that without Roe, states would go back to regulating abortion. After pro-choice advocates began sounding the alarm about Kavanaugh’s likely threat to abortion access, some right-wing media claimed such reactions were “hysterical” and argued that if Roe was overturned, abortion regulation would merely be returned to the states. For example, American Constitution Union’s Matt Schlapp told Fox Business’ Stuart Varney that “most conservatives and constitutionalists believe” that without Roe, abortion regulation “goes to the states,” which he claimed was just a continuation of what is “already happening” with abortion regulations. The talking point even spread to CNN, where CNN legal commentator and former Virginia Attorney General Ken Cuccinelli argued that “all overturning Roe v. Wade does is” give the regulation power “to the states.” [Media Matters, 7/12/18; 7/5/18]

Overturning Roe would have devastating consequences for abortion rights and access. Kaiser Health News’ Julie Rovner reported that, according to the Center for Reproductive Rights’ Amy Myrick, “We think there are 22 states likely to ban abortion without Roe’ because of a combination of factors including existing laws and regulations on the books and the positions of the governors and state legislatures.” The Guardian put the number of states with such laws at 24. The Guttmacher Institute and the Center for Reproductive Rights both outlined the impact that a loss of Roe would have, including the number of states with “trigger” laws that would automatically ban abortion if Roe is overturned, the number of states that have abortion bans on the books enacted pre-Roe that could come back into force, and the number of states with codified protections for abortion rights if Roe is overturned. In addition, the Center for Reproductive Rights outlined states that have attempted to enact (in most cases, a court has blocked the implementation) six-week, 12-week, 15-week, or 20-week bans on abortion in violation of the timeframe established by Roe and subsequent case law. The bans could become more salient in a post-Roe world. Whatever the number of restrictions in place, as Reva Siegel, a professor at Yale Law School, wrote for The New York Times, that returning the issue to the states would be disastrous, in part, because already, “27 major cities are 100 miles or more from the nearest abortion provider, and we can expect these ‘abortion deserts’ in the South and the Midwest to spread rapidly” if states are given free reign. [Kaiser Health News, 7/10/18; The Guardian, 6/30/18; Guttmacher Institute, 8/1/18; The Center for Reproductive Rights, accessed August 2018; The New York Times, 6/28/18]

Here is a state-by-state breakdown of how media outlets are talking about the potential impact of overturning Roe


Melissa Joskow / Media Matters

Northeast

Connecticut Delaware District of Columbia Maine
Maryland Massachusetts New Hampshire New Jersey
New York Pennsylvania Rhode Island Vermont

Midwest

Illinois Indiana Iowa Kansas
Michigan Minnesota Missouri Nebraska
North Dakota Ohio South Dakota Wisconsin

South

Alabama Arkansas Florida Georgia
Kentucky Louisiana Mississippi North Carolina
Oklahoma South Carolina Tennessee Texas
Virginia West Virginia

West

Alaska Arizona California Colorado
Hawaii Idaho Montana Nevada
New Mexico Oregon Utah Washington
Wyoming

*The information in the bullets below is from the Center for Reproductive Rights and NARAL Pro-Choice America

Northeast

Connecticut

Current status:

  • State law protecting abortion rights
  • Has pro-choice governor, pro-choice Senate, mixed-choice House

Abortion rights will probably be protected in Connecticut, but Democrats hold a narrow majority in the state legislature. As Hartford Courant noted, “Connecticut has one of the most liberal abortion laws in the nation,” as it is one of only a handful of states with laws echoing Roe’s protections at the state level. The Hartford Courant continued, explaining that this “means abortion would remain legal in Connecticut, even if it is banned on the federal level, unless the state legislature passed a new law barring the procedure.” However, as the Connecticut Post warned, currently in Connecticut’s state legislature, “Democrats hold a narrow 79-72 majority in the House, while the Senate is tied at 18” which could place further protections in jeopardy. [Hartford Courant, 7/11/18; Connecticut Post, 8/6/18]

Delaware

Current status:

  • State law protecting abortion rights
  • Pro-choice governor; pro-choice Senate; pro-choice House

Delaware will likely continue to protect abortion access, but safeguards could be undone by a future anti-abortion legislature. Delaware’s The News Journal reported that abortion access “in Delaware is safe — for now — no matter what happens at the U.S. Supreme Court” because “Delaware has a law that says abortion is legal no matter what happens to the Roe v. Wade ruling.” However, because Delaware's protection is statutory, not constitutional, abortion access in the state depends on the ideology of the legislature. The News Journal spoke to Ruth Lytle-Barnaby, president and CEO of Planned Parenthood of Delaware, who said that “she is concerned about the possibility of the law being overturned” in Delaware because “we’re only safe as how we are at the last session” of the state legislature. [The News Journal, 7/9/18]

District of Columbia

Current status:

  • No protections or ban if Roe is overturned
  • Pro-choice mayor and city council

Congress could vote to ban abortion rights in the District of Columbia, but it is currently “extremely unlikely." Washingtonian’s Emma Sarappo characterized chances that the D.C. Council would “outlaw or restrict abortion” absent Roe as “almost none” because “the council is overwhelming progressive.” However, because Congress has “full legislative authority” over the capital, it could “simply dictate a ban” although it would still be “extremely unlikely.” Sarappo also pointed to the Congressional budget process as an avenue for abortion rights to be restricted or limited, since “DC’s budget must be approved by Congress.” However, Sarappo noted that Congress has previously failed to pressure the city into implementing a law, such as a 2012 bill that would’ve banned abortion at 20 weeks that “didn’t even get out of committee.” [Washingtonian, 7/20/18]

Maine

Current status:

  • State law protecting abortion rights
  • Anti-choice governor; mixed-choice Senate; mixed-choice House

While Maine has a law protecting abortion access, the “statehouse is mixed on abortion rights.” Sen. Susan Collins’ (R-ME) home state of Maine adopted “the affirmative right to choice into its state law in 1979,” and therefore statutorily protects abortion rights, according to ThinkProgress’ Amanda Michelle Gomez. However, since this is a state law, rather than a state constitutional protection, the right to abortion is dependent upon the ideological bent of the state legislature. As Gomez explained, the “statehouse is mixed on abortion rights,” and “a Republican-controlled Legislature could be tempted to pass” abortion restrictions “knowing they’ll be upheld” at the Supreme Court with Kavanaugh. [ThinkProgress, 7/10/18]

Maryland

Current status:

  • State law protecting abortion rights
  • Pro-choice governor; pro-choice Senate; pro-choice House

Maryland has a law protecting abortions, but a stronger, constitutional protection is needed. The Baltimore Sun’s editorial board wrote that it agreed with the assessment of Maryland House Speaker Michael E. Busch that “Maryland law isn’t strong enough and that a state constitutional amendment is needed” to protect abortion rights in the state. The editorial board continued that while the “basic rights granted by Roe v. Wade” were protected in the state by a 1991 law, Maryland should still pass a constitutional amendment protecting abortion rights. Such action, the board wrote, “by states like Maryland to affirm their support for the basic structure of Roe might well sway the high court not to overturn it in the first place” because protecting these rights may make the court “more reluctant ... to overturn a 45-year-old precedent.” [The Baltimore Sun, 8/2/18]

Massachusetts

Current status:

  • State constitutional protection established by case law
  • Pro-choice governor; pro-choice Senate; pro-choice House

In response to Kavanaugh’s nomination, Massachusetts repealed its unenforceable abortion ban. According to Time magazine’s Samantha Cooney, Massachusetts became “the first state to respond to the possibility that Roe v. Wade … could be repealed or significantly weakened following the retirement of Justice Anthony Kennedy.” Massachusetts previously had an unenforceable law on the books criminalizing “procuring a miscarriage.” Cooney noted that although abortion opponents said the repeal of the statute was “unnecessary” because “abortion rights are safe in the state” with “the Democratic party’s hold over both chambers of the state’s legislature,” the law had actually been used as recently as 2007 when “an 18-year-old Dominican immigrant was charged with procuring a miscarriage after taking three Misoprostol pills, which are used in medical abortions.” Daily Hampshire Gazette columnist and civil rights lawyer Bill Newman also noted that regardless of the legality of abortion at the national level, “anti-choices forces” still exist in Massachusetts, pointing to the 30 anti-abortion fake health clinics in the state as evidence. [Time magazine, 7/23/18; Daily Hampshire Gazette, 8/5/18]

New Hampshire

Current status:

  • No protections or ban if Roe is overturned
  • Anti-choice governor; mixed-choice Senate; mixed-choice House

Candidates for governor of New Hampshire are being questioned about protecting abortion access following Kavanaugh’s nomination. According to the Center for Reproductive Rights, New Hampshire currently has neither a statutory nor a constitutional protection for abortions rights, but also lacks a law banning abortion if Roe is overturned. As a result, abortion rights are an issue in the New Hampshire governor’s race with Republican incumbent Gov. Chris Sununu saying he supports Trump’s nomination of Kavanaugh, but also “remains a supporter of abortion rights,” according to the Concord Monitor. Sununu’s two Democratic opponents -- Molly Kelly and Steve Marchand -- criticized Sununu for holding what they viewed as contradictory positions on abortion rights. [Center for Reproductive Rights, accessed 8/29/18; Concord Monitor, 7/30/18]

New Jersey

Current status:

  • State constitutional protection established by case law
  • Pro-choice governor; pro-choice Senate; pro-choice General Assembly

Absent Roe, New Jersey would likely protect abortion access, but is still vulnerable to federal restrictions. Philadelphia Inquirer’s Anna Orso reported that if the Supreme Court overturns Roe, the criminalization of abortion “almost certainly wouldn’t happen in New Jersey.” Orso pointed to Democratic control of “the state legislature and the office of the governor,” as well as the fact that “it doesn’t have any laws on the books that restrict abortion in the absence of Roe.” In fact, as NARAL Pro-Choice America has outlined, “The New Jersey Constitution protects the right to choose as a fundamental right and to a greater extent than the U.S. Constitution.” However, the editorial board of New Jersey’s The Star-Ledger warned that if Roe is overturned, “the Republican Congress and President Trump will have a chance to outlaw abortion nationally, even in blue state like New Jersey.” As but one example, the editorial board pointed to the possibility of Congress banning abortion nationwide by using its power to regulate interstate commerce under the Commerce Clause, since people would have to travel “from red states to blue states to get abortions.” [The Philadelphia Inquirer, 6/29/18; NARAL Pro-Choice America, accessed 8/29/18; The Star-Ledger, 7/1/18]

New York

Current status:

  • No protections or ban if Roe is overturned
  • Pro-choice governor; anti-choice Senate; pro-choice Assembly

New York still has pre-Roe abortion restrictions on the books that are “seemingly out of step with” its liberal politics. According to City Newspaper in Rochester, “when New York liberalized its abortion laws” in 1970, “it kept them in the state's penal code,” but characterized them as “exceptions to homicide law.” As The New Republic’s Sarah Jones explained, the current law makes abortion “illegal after 24 weeks of pregnancy, unless a woman’s life is in danger; women who need” later abortions “for other reasons, like a fetus that’s no longer viable, must travel out of state for their procedures.” Jones concluded that these restrictions were “seemingly out of step with” New York’s liberal politics. According to NARAL Pro-Choice America, these exceptions have been informally expanded by New York to put the state in line with Roe. As a result, since the codified 24-week limit is in the criminal code, the New York Civil Liberties Union found “hospitals and health providers in New York are reluctant to provide abortion care to women past 24 weeks of pregnancy because of the threat that they could be criminally prosecuted under state law.” [City Newspaper, 8/6/18; The New Republic, 7/11/18; NARAL Pro-Choice America, accessed 8/29/18; New York Civil Liberties Union, January 2017]

Pennsylvania

Current status:

  • No protections or ban if Roe is overturned
  • Pro-choice governor; anti-choice Senate; anti-choice House

Pennsylvania governor’s race could determine the state of abortion access due to the hostile legislature. Philadelphia’s WHYY reported that incumbent Democrat Gov. Tom Wolf vowed to veto any bill “banning abortion” if a Supreme Court with Kavanaugh overturns Roe. However, the Republican candidate Scott Wagner told WHYY’s Dave Davies that he was “not committing to anything” if such legislation was passed. Pennsylvania has imposed several abortion restrictions over the years, according to Pittsburgh's online news site The Incline, including nearly approving “a 20-week ban in December,” which Wolf vetoed. The bill would’ve also “imposed criminal penalties on doctors who perform the dilation and evacuation procedure. The ban [had] passed with support from Democrats and Republicans in both chambers” before Wolf ultimately vetoed it. [WHYY, 7/20/18; The Incline, 7/24/18]

Rhode Island

Current status:

  • Pre-Roe ban on the books, but was blocked by the courts
  • 12-week ban on the books, but was blocked by the courts
  • No protections or ban if Roe is overturned
  • Mixed-choice governor; anti-choice Senate; anti-choice House

Despite being “one of the most reliably blue states in the country,” Rhode Island has faced many obstacles to protecting abortion rights. Mother Jones’ Dan Spinelli wrote that, despite Rhode Island being “one of the most reliably blue states in the country,” it has faced considerable roadblocks in its quest to protect abortion rights. For instance, Rhode Island “managed to amend its constitution in 1986 to include the phrase: ‘No right to abortion granted,’ which is expressly at odds with federal law.” In addition, Spinelli pointed to “a powerful anti-abortion lobby” in Rhode Island that “has carved out an influential foothold,” writing that in 2016 election, “the advocacy group Rhode Island Right to Life endorsed 48 Democrats across the state legislature.” Despite polling showing support for abortion rights in Rhode Island, “a majority Democratic legislature in a deeply liberal northeastern state was unable to pass a pair of bills in March mandating contraceptive materials be included in health insurance contracts, and that Medicaid recipients be entitled to one year’s supply of birth control.” [Mother Jones, 7/20/18]

Vermont

Current status:

  • No protections or ban if Roe is overturned
  • Mixed-choice governor; pro-choice Senate; pro-choice House

Vermont will likely protect abortion rights, but it could face challenges from patients coming in from out-of-state. Burlington Free Press’ Aki Soga explained that “both abortion rights supporters and opponents agree” that “a reversal of Roe v. Wade … would be unlikely to have an immediate impact on abortion access in Vermont.” The state “has no laws to limit abortion access waiting to take effect in the event of a successful challenge to Roe v. Wade” and “any effort to pass such laws” does not “face a realistic chance of succeeding.” The policy director of ACLU Vermont, Chole White, told Soga that overturning Roe wouldn’t have “an immediate impact overall in Vermont,” but “could have a tremendous effect on people coming into Vermont seeking abortions if they were outlawed in other states.” [Burlington Free Press, 7/9/18]


Melissa Joskow / Media Matters

Midwest

Illinois

Current status:

  • No protections or ban if Roe is overturned
  • Mixed-choice governor; mixed-choice Senate; mixed-choice House

Illinois recently amended a law that would have outlawed abortion if Roe was overturned, but abortion rights supporters want stronger protections. Illinois currently has no statutory or constitutional protection for abortion rights, and only last year amended a law that would have automatically banned abortion in the event that Roe was overturned. Republican governor Bruce Rauner said that he signed the bill “so that women’s reproductive rights are protected regardless of what happens at the federal level,” implying that nothing more was needed to protect abortion rights in Illinois, according to the Chicago Sun Times. However, Rauner also said that “he supports the Supreme Court nomination of Brett Kavanaugh.” Pro-choice groups and politicians have “pressured the Republican governor to sign a pledge, vowing to protect” the law he signed in the event Roe was overturned. [Chicago Sun Times, 7/10/18]

Indiana

Current status:

  • No protections or ban if Roe is overturned
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

Although Indiana will likely restrict or ban abortion no matter what, one current state law could be the Supreme Court’s next abortion case. Politico’s Jennifer Haberkorn explained that “an anti-abortion law Vice President Mike Pence signed as governor of Indiana could become the case that lets the Supreme Court reshape abortion rights as soon as next year.” Although the law “which prohibited abortion because of the gender, race or disability of the fetus, such as Down syndrome — was blocked by lower courts,” (and in fact seeks to ban abortions on the basis of right-wing myths), Haberkorn wrote that the law “could be the opening for a broader ruling on Roe v. Wade that could redefine abortion rights nationwide.” While Indiana does not have a pre-Roe abortion ban or a "trigger" law, it does have an unconstitutional ban prohibiting abortions after 20 weeks, according to the Guttmacher Institute, and the state legislature has shown an appetite for expanding abortion restrictions. Diane Kasdan, senior staff attorney at the Center for Reproductive Rights told The Indiana Lawyer magazine that Indiana is one of “about 22 states … that would likely move to outlaw abortions if Roe were struck down.” [Politico, 7/23/18; Guttmacher Institute, August 2018; The Indiana Lawyer, 7/25/18]

Iowa

Current status:

  • State constitutional protection established by case law
  • Six-week ban on the books, but was blocked by the courts
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

Anti-choice politicians hope to take Iowa’s six-week abortion ban to the Supreme Court and effectively end abortion access across the United States. Iowa has already passed an unconstitutional ban on abortion this year with the so-called “heartbeat” bill, which would ban “abortion statewide at the point when a physician can detect what sounds like a heartbeat on an ultrasound,” according to Bustle’s Claire Lampen. Lampen explained that “legislators in Iowa did add last-minute exceptions for victims of rape and incest, but regardless, many people won't realize they’re pregnant at six weeks.” The bill was written, according to an anti-choice politician, “with the expressed agenda of placing the law before the nation’s highest bench.” [Bustle, 6/28/18]

Kansas

Current status:

  • No protections or ban if Roe is overturned
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

Kansas’ Republican gubernatorial candidate pushed for eliminating abortion access in the state, and the legislature has supported the same. According to Kansas City Star’s Judy Thomas, before Roe, Kansas was “one of the first states to liberalize its abortion law,” though access was still severely limited. After Roe, however, the state “effectively repealed” that law and has since experienced “a conservative shift in the Legislature [that] has paved the way for the passage of numerous abortion restrictions.” For example, Kansas currently has “a ban on a commonly used second-trimester procedure called dilation and evacuation … tied up in the courts.” Anti-abortion group Kansas for Life said, if it loses the case, it “will propose a constitutional amendment that will say the Kansas Constitution does not contain a right to abortion.” In addition, Kris Kobach, the Republican candidate for governor, wrote on Twitter that “Roe v. Wade's days are numbered” and that he was “100% pro-life.” [The Kansas City Star, 7/17/18; Twitter, 7/15/18]

Michigan

Current status:

  • Pre-Roe ban on the books, but was blocked by the courts
  • Anti-choice governor; anti-choice Senate; anti-choice House

Michigan has a pre-Roe abortion ban on the books and a legislature unlikely to protect abortion rights. As Detroit Free Press’ columnist Nancy Kaffer summarized, “If the high court overturned Roe, abortion would be illegal in Michigan” because the state “never repealed the pre-Roe law that banned abortion.” According to Detroit Free Press’ Kathleen Gray, this law “made performing an abortion a felony, unless it was to save the life of the mother … and has no exceptions for rape or incest.” Gray further explained that the state legislature is unlikely to repeal this law or otherwise protect abortion rights since “Republicans hold a 63-46 majority in the House and a 27-10 majority in the Senate.” Republican candidate for governor Bill Schuette additionally supported overturning Roe saying that he’s “a pro-life governor, period.” [Detroit Free Press, 7/18/18, 7/24/18; MLive, 8/7/18]

Minnesota

Current status:

  • State constitutional protection established by case law
  • Pro-choice governor; anti-choice Senate; anti-choice House

Minnesota’s constitution protects abortion rights, but that hasn’t stopped anti-abortion candidates from attempting to chip away at abortion access. According to Minnesota Public Radio News’ Briana Bierschbach, there is no Pre-Roe abortion ban on the books and a Minnesota court case found that abortion is “a constitutional right” in the state, even in the event that Roe was overturned. Bierschbach explained that outlawing abortion in Minnesota would require “an amendment to the constitution or a decision by the court to overturn its own precedent, which is rare.” However, as Bierschbach warned, Minnesota’s legislature “can legislate around” the court decision, “regulating how, when and under what circumstances a woman may obtain an abortion.” Indeed, both houses in the Minnesota legislature are currently controlled by Republicans, and the pro-choice governor, responsible for vetoing several anti-abortion bills, “is not running for re-election this year.” [Minnesota Public Radio News, 7/18/18]

Missouri

Current status:

  • No protections or ban if Roe is overturned
  • Anti-choice governor; anti-choice Senate; anti-choice House

Missouri Republicans hope to further restrict abortion if Roe is overturned, while Missouri Democrats considered amending the party platform to welcome anti-abortion members. According to the Center for Reproductive Rights, Missouri currently has an anti-choice governor and legislature and has no protections or ban in place if Roe is overturned. However, there is an appetite for further abortion restrictions. For example, in July, Republican state Rep. Mike Moon told The Associated Press that the “time is right” to pass an anti-abortion amendment to the state constitution. In addition, as The Kansas City Star reported, the Missouri Democratic Party had adopted an amendment to its platform welcoming anti-abortion members. In August, Riverfront Times reported that the state committee had decided to “delete” the amendment. [Center for Reproductive Rights, accessed 8/29/18; Riverfront Times, 8/13/18; The Associated Press, 7/12/18; The Kansas City Star, 7/5/18]

Nebraska

Current status:

  • 20-week ban on the books
  • No protections or ban if Roe is overturned
  • Anti-choice governor; anti-choice Senate

Nebraska will likely pass an anti-abortion ban or restriction if Roe is overturned. As New York magazine explained, Nebraska is one of 21 states “that have enacted a clearly unconstitutional (under current law) abortion ban,” which prohibits access to abortion after 20 weeks. As the Center for Reproductive Rights outlined, Nebraska also has an anti-abortion legislature (it has only one chamber unlike other states), as well as an anti-abortion governor. The executive director of the Nebraska Catholic Conference told WEWS-TV that “he believes there is a real chance Roe vs. Wade could be overturned” and that “he’s always seeking new ways to” restrict abortion in the state. Meg Mikolajczyk, deputy director Planned Parenthood of the Heartland, told WEWS-TV “that while Gov. Pete Ricketts has often said that Nebraska is a pro-life state, she believes Nebraskans ultimately want abortion access.” [New York Magazine, 7/27/18; Center for Reproductive Rights, accessed 8/29/18; WEWS-TV, 7/5/18]

North Dakota

Current status:

  • “Trigger” law on the books
  • Six-week ban on the books, but was blocked by the courts
  • 20-week ban on the books
  • Mixed-choice governor; anti-choice Senate; anti-choice House

North Dakota has a "trigger" law that will ban abortion automatically if Roe is overturned, but North Dakotans already face many obstacles to accessing abortion care. The Daily Beast’s Torey Van Oot reported that the current barriers to abortion access in North Dakota will only get worse with the overturning of Roe. North Dakota is one of four states with a “trigger” law on the books that would automatically ban abortion if the Supreme Court overturns Roe. Since South Dakota is one of the other states with a trigger law, Van Oot wrote, overturning Roe would mean “there would be no legal providers within the states’ combined area of 149,548 square miles — a swath of land twice the size of New England.” Van Oot explained that because North Dakota currently has only one abortion clinic, those “seeking abortion in North Dakota faced journeys of 151 miles on average in 2014, compared to a national average of just under 11 miles.” In addition, “One in five women in North Dakota traveled more than 280 miles for their procedure.” [The Daily Beast, 7/11/18]

Ohio

Current status:

  • 20-week ban on the books
  • No protections or ban if Roe is overturned
  • Anti-choice governor; anti-choice Senate; anti-choice House

Ohio “is already one of most difficult states to access abortion care” and will likely ban abortion if Roe is overturned. Jennifer Spinosi, who is on the board of directors of an Ohio abortion fund, explained the already dire situation of abortion access in Ohio for NBC News. Spinosi wrote that Ohio “is already one of most difficult states to access abortion care” due in part to the “more than 20 anti-abortion laws” passed “since 2011.” These restrictions have reduced the number of clinics in the state from 16 to eight, and have produced “an undeniable gap in abortion access between people who have money and privilege and those who don’t.” Spinosi also wrote that not only do “many Ohioans already travel out of state to receive care — to Michigan, Pennsylvania, sometimes as far as Maryland or Colorado,” and also that “people from other states are occasionally forced to travel to Ohio for abortion access — many from Kentucky and West Virginia, states which have only one clinic today.” Spinosi warned that if Roe is overturned, “the current anti-abortion supermajority in the Ohio Legislature will compete in a race to the bottom to completely ban abortion.” [NBC News, 7/5/18]

South Dakota

Current status:

  • “Trigger” law on the books
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

South Dakota already has a "trigger" law that would automatically ban abortion. As writer s.e. smith wrote for Care2, South Dakota has a “trigger” law that would make abortion “entirely illegal as soon as” the Supreme Court overturned Roe. Since North Dakota is also one of the four states with a “trigger” law on the books, The Daily Beast’s Torey Van Oot explained that overturning Roe would mean “there would be no legal providers within the states’ combined area of 149,548 square miles — a swath of land twice the size of New England.” People seeking abortions in South Dakota already face many difficulties in accessing care due to a number of abortion restrictions and the economic burden of having to travel to receive care, as both North and South Dakota each only have one abortion clinic. [Care2, 7/8/18; The Daily Beast, 7/11/18]

Wisconsin

Current status:

  • Pre-Roe ban on the books, but was blocked by the courts
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice Assembly

Wisconsin could “revive a long-dormant, near-total ban on abortion” if Roe is overturned. Wisconsin State Journal’s Mark Sommerhauser reported that the overturning of Roe v. Wade “could revive a long-dormant, near-total ban on abortion in Wisconsin.” Wisconsin’s pre-Roe law makes performing an abortion a felony for a person “other than the mother,” with the possibility of a fine or jail time, with exceptions only “to save the life of the mother.” Sommerhauser spoke to University of Wisconsin-Madison law professor Alta Charo, who speculated that “the ban likely would be pre-empted by another state law that criminalizes abortion after the point of fetal viability.” However, even if this is the case, Sommerhauser noted that “a Roe reversal could empower Gov. Scott Walker and Republican state legislators to enact new abortion restrictions.” As Rewire.News’ Lauren Holter noted, Walker faces a “close race” for re-election against Democratic opponent Tony Evers who has “vow[ed] to work with the state legislature to undo the pre-Roe ban.” [Wisconsin State Journal, 7/8/18; Rewire.News, 8/22/18]


Melissa Joskow / Media Matters

South

Alabama

Current status:

  • Pre-Roe ban on the books
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

Alabama will vote on an anti-abortion provision to the state constitution this November. Alabamians will vote on a ballot measure this November that says there is not a right to abortion or abortion funding, and that the state recognizes “the sanctity of unborn life and the rights of unborn children, including the right to life.” As Slate explained, “Adding fetal rights to the constitution could have far-reaching effects, from criminalizing abortion and certain kinds of contraception to allowing 5-day-old embryos to sue adult humans in court and requiring couples who undergo fertility treatments to pay for the upkeep of their spare frozen embryos in perpetuity.” Alabama Pro-Life Coalition President Eric Johnston told AL.com that “the proposed amendment would help lawmakers build the case for an updated statute to outlaw abortion,” even though Alabama already has a pre-Roe ban on abortion. [Slate, 7/17/18; AL.com, 7/24/18]

Arkansas

Current status:

  • Pre-Roe ban on the books, but was blocked by the courts
  • 12-week ban on the books, but was blocked by the courts
  • Anti-choice governor; anti-choice Senate; anti-choice House

Arkansas has a pre-Roe abortion ban on the books and a pending lawsuit that could close two of its three abortion clinics. As ThinkProgress’ Casey Quinlan explained, Arkansas doesn’t have a law protecting abortion rights if Roe is overturned, but does have “laws pre-dating Roe v. Wade that ban abortion as well as laws that restrict abortions to the maximum extent possible in the case Roe v. Wade is overturned.” In addition, an Arkansas law currently in litigation could close two of state’s three abortion clinics. The law would ban medication abortions from being performed at clinics that do not “have a contract with a doctor who has admitting privileges at a hospital in the state”, but would not ban surgical abortions, leaving only one clinic open in the state. Quinlan wrote that the law “makes patients in Northwest Arkansas travel a 380-mile round trip for abortion care in Little Rock Family Planning Services, which provides surgical abortion, to get any abortion care whatsoever.” However, during legal proceedings, “the state argued patients could simply leave the state” to access abortion care. [ThinkProgress, 7/10/18; ABC News, 5/29/18]

Florida

Current status:

  • State constitutional protection established by case law
  • Anti-choice governor; anti-choice Senate; anti-choice House

Despite constitutional protection for abortion rights, Florida legislators want to ban abortion. As Kirby Wilson of the Tampa Bay Times wrote, abortion opponents in Florida will have to overcome a state constitutional clause that ensures a right to privacy that “has been interpreted to enshrine the logic at the heart of Roe v. Wade.” Wilson noted, however, that “many conservative legal analysts believe abortion is not a privacy issue unless the state Constitution explicitly says so” and with “three of the Florida Supreme Court's seven justices” set to retire in 2019, the balance of the court may depend on the outcome of the governor’s race. According to Politico’s Alexandra Glorioso, “Florida could prove to be a guinea pig among states that don’t have abortion bans on the books but whose conservative leaders have been seeking to restrict abortion access.” As but one example, Glorioso noted that now Republican gubernatorial candidate Ron DeSantis has pledged to sign a so-called “heartbeat bill,” while Democratic candidate Andrew Gillum opposes abortion restrictions. [Tampa Bay Times, 7/9/18; Politico, 7/2/18; The New York Times, 8/28/18]

Georgia

Current status:

  • No protections or ban if Roe is overturned
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

Georgia anti-abortion advocates see Kavanaugh’s nomination as an opportunity to pass abortion restrictions, while pro-choice activists are fighting back. After Kennedy's retirement, The Atlanta Journal-Constitution’s Maya Prabhu reported that anti-abortion advocates in Georgia were looking to further restrict abortion rights. Prabhu wrote that anti-abortion advocate Mike Griffin, who is a pastor and lobbyist for Georgia Baptist Mission Board, “said he expects to urge the passage of ‘personhood’ legislation, which would extend legal rights to fertilized eggs.” In addition, Prabhu noted that Brian Kemp, who is now the Republican candidate for governor of Georgia, has expressed support for a Mississippi law banning abortion at 15 weeks of pregnancy and stated that “he would seek to surpass those limits if he’s elected.” Prabhu wrote that “though Republicans hold both legislative chambers and the governor’s office in Georgia,” Democrats hope to win back seats as well as elect Democrat Stacey Abrahams for governor. In addition, Mic’s Gabriela Resto-Montero reported that the “unapologetic tactics” of pro-choice activists in Georgia, “such as flying pro-abortion banners above festivals, canvassing neighborhoods to talk about the importance of reproductive choice and volunteering to drive women to appointments, also serve as a template for progressives moving forward as challenges to Roe v. Wade move through the courts.” [The Atlanta Journal-Constitution, 7/3/18; The New York Times, 7/24/18; Mic, 7/31/18]

Kentucky

Current status:

  • No protections or ban if Roe is overturned
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

As Kentucky faces the possible closure of its last abortion clinic, pro-choice activists already have a post-Roe plan in place. As ThinkProgress’ Amanda Michelle Gomez wrote in July 2018, “Kentucky’s last remaining abortion clinic is only open right now because a federal judge issued a temporary restraining order in March 2017” and that the “final ruling is expected any day now.” If the clinic closes, pro-choice activists plan to support the Kentucky Health Justice Network to transport patients to abortion facilities out of state. Members "already drive people to Granite City, Illinois" as well as to "Chicago, Illinois, Baltimore, Maryland, and Washington, D.C. for the procedure." Gomez wrote that the need for a “contingency plan” is “a real concern since Kentucky lawmakers have made it clear that they’ll ban abortion to the maximum extent allowed under the Supreme Court.” Gomez stated that “if Roe is overturned, Kentucky Health Justice Network will need to hire more than the 60 volunteers they currently staff or have them work overtime. It means they’ll need more people to donate money. It might mean having to turn people away.” [ThinkProgress, 7/3/18]

Louisiana

Current status:

  • “Trigger” law on the books
  • Pre-Roe ban on the books, but was blocked by the courts
  • 15-week ban on the books, but it is currently not in effect
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

Louisiana has a “trigger” law that would ban abortion if Roe is overturned and pro-choice advocates are warning of needing more resources. Louisiana’s The Advocate explained that Louisiana is one of four states with a “trigger” law that would immediately outlaw abortion if Roe is overturned, “ban[ning] abortions in all cases, except when giving birth would threaten the life of the mother,” with no exceptions “for pregnancy resulting from rape.” Ellie Schilling, a New Orleans attorney representing the Louisiana Coalition for Reproductive Freedom told The Advocate that pro-choice organizations would need to “look into putting women on buses or planes, or trying to arrange for homes to stay in out of state,” to facilitate abortion care if Roe was overturned. She noted that such a system “already sort of exists,” but “it would have to become far more robust" in a world without Roe. [The Advocate, 7/7/18]

Mississippi

Current status:

  • “Trigger” law on the books
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

Mississippi has a “trigger” law that will ban abortion if Roe is overturned. Mississippi’s WJTV reported on Mississippi being “one of just four states with a trigger law on abortion.” Such a law, WJTV’s Margaret-Ann Carter explained, “would automatically ban abortion if the Supreme Court” overturns Roe. Carter explained that Mississippi’s law “states the attorney general would first have to certify that the supreme court had made this decision, but just 10 days after that abortion in the state of Mississippi would become illegal.” Mississippi College Law School professor Matt Steffey told WJTV that the ban would mean criminal punishment “with up to three years in prison for somebody to perform an abortion, except in cases necessary to save the mother's life and cases where there is a pending rape prosecution.” Steffey also explained that the law “exclusively affects poor women and women in desperate circumstances,” because “women with means could easily travel outside of state and obtain a safe and legal abortion.” [WJTV, 7/11/18]

North Carolina

Current status:

  • No protections or ban if Roe is overturned
  • 20-week ban on the books
  • Pro-choice governor; anti-choice Senate; anti-choice House

North Carolina’s legislature may attempt to ban abortion if Roe is overturned. In an opinion piece for North Carolina’s The News & Observer, University of North Carolina School of Law professor Gene Nichol wrote that after the Supreme Court (with Kavanaugh) overturns Roe, the North Carolina legislature will further decimate abortion rights. Nichol said that with the legislature’s reputation, “we can expect to open the paper one morning and learn, lo and behold, that abortion is illegal across North Carolina.” Nichol suggested that defense of post-Roe abortion rights would likely depend on the currently “4-3 Democratic” North Carolina Supreme Court. However, he wrote, “Imagine what our North Carolina Supreme Court elections are to become. Seven people will decide, on their own, whether the ten million of us enjoy reproductive freedoms and equal status as human beings. ” [The News & Observer, 7/5/18]

Oklahoma

Current status:

  • Pre-Roe ban on the books, but was blocked by the courts
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

Oklahoma has a pre-Roe abortion ban on the books, and a Republican gubernatorial candidate is willing to sign a ban on abortion. As NARAL Pro-Choice America explained, Oklahoma still has a pre-Roe “unenforceable ban” that makes it a felony for to procure or perform an abortion unless “necessary to preserve the woman’s life.” In addition, the ban says, “A woman who solicits or submits to an abortion not necessary to preserve her life may be imprisoned for up to one year, fined up to $1000, or both.” As NARAL noted, these bans have been blocked by court decisions. However, The Oklahoman’s NewsOK reported that the now Republican gubernatorial candidate Kevin Stitt said he “would sign legislation banning or restricting abortion, even if it would violate abortion rights granted by the U.S. Supreme Court in two major decisions.” NewsOK noted that Stitt indicated support for legislation to “protect the lives of unborn children and prohibit abortion except to prevent the death of the mother.” [NARAL Pro-Choice America, accessed 8/29/18; NewsOK, 7/15/18; The New York Times, 8/28/18]

South Carolina

Current status:

  • No protections or ban if Roe is overturned
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

South Carolina’s majority anti-abortion legislature will likely curtail or ban abortion access in the state if the Supreme Court overturns Roe. McClatchyDC reported that “pro-life activists in South Carolina … agree Kavanaugh’s nomination – and confirmation — certainly could bolster future legislative efforts” to restrict abortion rights. An anti-abortion state senator told McClatchyDC that he “thinks Kavanaugh’s ascent could create a perfect storm for pro-life efforts in the state.” Just “this year, S.C. lawmakers debated several proposals to curtail abortion in the state or outright ban it,” McClatchyDC reported, one of which “sought to ban all abortions, extending legal rights to fertilized eggs at the moment of conception,” but “failed to pass.” Before Justice Kennedy announced his retirement, Senate Republicans in South Carolina had also failed to pass another bill banning a common abortion procedure, but they argued that “the goal” of the bill had been to “spark a court challenge” in order to overturn Roe. [McClatchyDC, 7/10/18; The State, 5/4/18]

Tennessee

Current status:

  • No protections or ban if Roe is overturned
  • Anti-choice governor; anti-choice Senate; anti-choice House

A Supreme Court with Kavanaugh on it could hear challenges to a Tennessee ballot measure “that stripped the right to an abortion from the” state constitution. The Tennessean’s Anita Wadhwani reported on the implications of “a 2014 ballot measure that stripped the right to an abortion from the Tennessee constitution.” The ballot measure “added language to the state's constitution that said: ‘Nothing in this Constitution secures or protects a right to abortion.’" Opponents of the measure “have appealed its outcome to the U.S. Supreme Court.” Wadhwani wrote that the measure’s “passage opened a path for Tennessee lawmakers to enact stricter abortion regulations, including a 48-hour waiting period for women seeking an abortion.” The appeal centers on a “challenge to the state's method of counting votes for the ballot measure as well as the legal tactics of attorneys in the office of the Tennessee attorney general.” A Supreme Court with Kavanaugh on it could decide this case if the Supreme Court hears it. [The Tennessean, 7/20/18]

Texas

Current status:

  • No protections or ban if Roe is overturned
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

Texas anti-abortion advocates see the state as an essential part of challenging Roe at the Supreme Court. Jeremy Wallace of the Houston Chronicle wrote that “abortion opponents in Texas are convinced they are in a prime spot to lead a nationwide effort to chip away at” Roe with the confirmation of another Trump nominee to the Supreme Court. Wallace explained that a case involving a 2017 Texas law, which “banned the most common procedure used for second trimester abortions” has been classified as “the big one” that could make its way to the Supreme Court with Kavanaugh on the bench. Even if this challenge doesn’t result in Roe being overturned, Wallace wrote that “experts warn that if the Texas law were upheld, it would essentially bar women from getting abortions after the first trimester of a pregnancy.” According to KERA News, Rosann Mariappuram, a board member of NARAL Pro-Choice Texas, “says when it comes to abortion laws, the U.S. Supreme Court has acted as a sort of check on Texas in the past several years” and that “a change to the makeup of the court is a big deal.” The Texas Tribune’s Emma Platoff noted that Texas also has “never repealed its ban on abortion” even after Roe, but that “experts differ on whether, in the absence of the Supreme Court restriction, that ban would immediately become effective again.” [Houston Chronicle, 7/2/18; KERA News, 6/28/18; The Texas Tribune, 6/28/18]

Virginia

Current status:

  • No protections or ban if Roe is overturned
  • Pro-choice governor; mixed-choice Senate; mixed-choice House

Virginia has no protections or ban in place if Roe is overturned, but pro-choice activists have filed a lawsuit that could end up at the Supreme Court. Currently, Virginia has enacted no protections for, or ban on, abortion in the event the Supreme Court overturns Roe. Pro-choice advocates, though, filed a lawsuit in Virginia before Kennedy’s retirement “seeking to overturn numerous abortion restrictions, some of which have been on the books for decades.” The Hill outlined some of the laws at issue in the case, including “laws that say only doctors can perform abortions and that second-trimester abortions be performed in a hospital” and “the requirement abortion providers undergo ‘stringent licensure requirements.’” Fairfax Times highlighted another challenge in the lawsuit -- a law in the Virginia code, currently unenforced, that “characterizes the administration of any means to produce an abortion or miscarriage as a Class 4 felony” with some exceptions. Even after Kennedy announced his retirement, a pro-choice advocate told Politico she expects the lawsuit to go forward. [Center for Reproductive Rights, accessed 8/29/18; The Hill, 6/20/18; Fairfax Times, 7/20/18; Politico, 7/3/18]

West Virginia

Current status:

  • Pre-Roe ban on the books
  • 20-week ban on the books
  • Anti-choice governor; anti-choice Senate; anti-choice House

West Virginia has a pre-Roe ban still on the books as well as a pending opportunity to ban abortion via constitutional amendment in November. Slate’s Christina Cauterucci reported on West Virginia’s November ballot initiative which will ask voters to add anti-abortion language to the state constitution. Cauterucci explained that Republicans in West Virginia have long wanted an amendment to nullify “a 1993 state Supreme Court decision that affirmed a right to abortion care and Medicaid funding for abortion.” If the initiative passes, “the West Virginia legislature would once again be free to regulate abortion within the confines of federal law,” which would change if the U.S. Supreme Court overturned Roe. In addition, Cauterucci noted that West Virginia has a currently unenforceable abortion ban, which “the proposed modification to the constitution would, in concert, criminalize abortion providers as felons if the Supreme Court overturns Roe.” [Slate, 7/17/18]


Melissa Joskow / Media Matters

West

Alaska

Current status:

  • State constitutional protection established by case law
  • Anti-choice governor; anti-choice Senate; pro-choice House

Alaska will likely protect abortion rights post-Roe, but has an anti-abortion restriction that could end up before the Supreme Court. Daily Kos’ Joan McCarter wrote that Alaska’s “state constitution would protect abortion rights should Roe fall. But the legislature and the governor are … anti-choice, though probably don't have the two-thirds necessary to amend the state's constitution to get rid of the protections.” A current anti-abortion law in Alaska, requiring people to seek anti-choice counseling before receiving an abortion, though, “could be one of those lawsuits that reaches a Supreme Court with Kavanaugh seated as Kennedy’s replacement,” as ThinkProgress explained. [Daily Kos, 7/11/18; ThinkProgress, 7/10/18]

Arizona

Current status:

  • Pre-Roe ban on the books, but was blocked by the courts
  • 20-week ban on the books, but was blocked by the courts
  • Anti-choice governor; anti-choice Senate; anti-choice House

Arizona has a pre-Roe abortion ban on the books, but current court decisions have made it unenforceable. Arizona has laws on the books that would ban abortion if Roe is overturned, but a court order is currently preventing them from going into effect. As The Arizona Republic’s Lauren Castle explained, one ban would “declare abortion illegal unless the woman's life is at risk. It has no exceptions for cases of rape or incest” as well as criminalize abortion. A person seeking an abortion could “face up to five years in prison for soliciting medication or drugs, or undergoing an operation that will ‘procure a miscarriage.’" In addition, “a person can face time in prison for giving a woman medicine or using an instrument to ‘procure the miscarriage.’” Another law would also impact some means of birth control by making a person “guilty of a misdemeanor” for proscribing or taking “a medication to help facilitate a miscarriage, abortion or for ‘prevention of conception.’" [The Arizona Republic, 7/7/18]

California

Current status:

  • State constitutional protection established by case law
  • State law protecting abortion rights
  • Pro-choice governor; pro-choice Senate; pro-choice Assembly

California has both statutory and constitutional abortion protections if Roe is overturned, but is still vulnerable to changes in federal law. California currently protects abortion rights through both the state constitution and several laws, but those safeguards are still vulnerable to changes in federal laws and regulations. As The Sacramento Bee’s Emily Cadei explained, “How the next Supreme Court justice weighs in on Roe v. Wade is ultimately less important to Californians than how that justice rules on some other abortion and health-related cases likely to come before the court.” Cadei pointed to a potential change to Title X, a federal program, “which provides family planning and reproductive health services to low-income women” as an example. The proposed Title X rule would strip federal funding from Planned Parenthood clinics, and as Cadei explained, “Californians rely heavily on Planned Parenthood” as over 25 percent of Title X patients are Californians. The Sacramento Bee’s editorial board said the proposed rule could mean that low-income women in California would be unable to access abortion and reproductive care. [The Sacramento Bee, 8/2/18; 7/9/18]

Colorado

Current status:

  • No protections or ban if Roe is overturned
  • Pro-choice governor; mixed-choice Senate; pro-choice House

Colorado does not have laws banning or protecting abortion rights absent Roe, but that could change after the November election. Colorado Times Recorder’s Madeleine Schmidt explained that “Colorado has no laws that could significantly restrict access to abortion in the absence of Roe.” Schmidt wrote, “This doesn’t mean that abortion rights are totally secure in the state of Colorado – only that they’d be secure immediately following the overturning of Roe.” According to Schmidt, passing a law that would protect abortion rights “all hinges upon whether Colorado elects a pro-choice governor and a pro-choice majority in the state legislature in November.” In addition, Colorado faces the prospect of being surrounded by states with anti-choice state legislatures that could immediately move to ban abortion, including in Wyoming, Utah, Arizona, Kansas, Nebraska, and South Dakota.” This would create an increased burden on Colorado abortion providers who would be the closest possible options for patients from these states seeking abortion care. [Colorado Times Recorder, 7/12/18]

Hawaii

Current status:

  • State law protecting abortion rights
  • Pro-choice governor; pro-choice Senate; pro-choice House

Hawaii would protect abortion rights if Roe is overturned, but there are already several barriers to abortion access. According to the Center for Reproductive Rights, abortion rights are likely secure in Hawaii due to a state law protecting abortion rights if the Supreme Court overturns Roe. In 2017, Mother Jones reported that although “on paper, Hawaii is one of the best states in the country for abortion rights. ... On the ground, many Hawaii residents still struggle to find abortions (sic) providers.” This is because “only two of Hawaii’s eight major islands have at least one publicly advertised abortion provider, forcing thousands of women in one of the country’s most reliably blue states to either buy plane tickets or carry their pregnancies to term.” In fact, “a fifth of the state’s residents live on islands without” an abortion clinic. The people “most affected by the lack of abortion providers tend to be young, low-income women of color” who have fewer resources to get to abortion providers on the other islands. [Center for Reproductive Rights, accessed 8/29/18; NARAL Pro-Choice America, accessed 8/29/18; Mother Jones, 12/6/17]

Idaho

Current status:

  • 20-week ban on the books, but was blocked by the courts
  • No protections or ban if Roe is overturned
  • Anti-choice governor; anti-choice Senate; anti-choice House

After Roe, anti-abortion lawmakers in Idaho will likely further restrict or ban abortion in the state. Lewiston Tribune opinion page editor Marty Trillhaase wrote that with a majority on the Supreme Court willing to overturn Roe, “if you think the anti-abortion rights crowd in Boise won't seize on that opportunity, you haven't been paying attention.” Trillhaase pointed to the many anti-choice restrictions that “Idaho's GOP lawmakers have proposed and in many cases approved,” including “subjecting women to felony criminal prosecution if they obtained an abortion at home,” “all but giving the woman's husband or sexual partner a veto over her abortion by enabling him to sue any provider who fails to meet any of the state's requirements,” and “stopping a rape victim from obtaining an abortion if the alleged rapist challenges her accusation.” Trillhaase explained that Roe was the only thing “standing in the way” of these restrictions, and that in a post-Roe world, “access to safe and legal abortions could disappear in Idaho.” [The Lewiston Tribune, 7/2/18]

Montana

Current status:

  • State constitutional protection established by case law
  • Pro-choice governor; mixed-choice Senate; mixed-choice House

Montana’s constitutional protections for abortion rights could change after the 2018 midterms. In 1995, a Montana district court “held that the Montana Constitution protects the right to choose as a fundamental right and to a greater extent than the U.S. Constitution,” according to NARAL Pro-Choice America. As a result, courts in Montana have struck down a number of abortion restrictions which violate the state constitution. However, as Alison James, co-chair of NARAL Pro-Choice Montano told Mari Hall of The Missoula Current, a Republican candidate for Senate, Matt Rosendale, “opposes abortion, and has supported an amendment defining ‘personhood’ as beginning at conception,” which could be implemented at the federal level post-Roe. [NARAL Pro-Choice America, accessed 8/29/18; The Missoula Current, 7/10/18]

Nevada

Current status:

  • State law protecting abortion rights
  • Mixed-choice governor; pro-choice Senate; pro-choice Assembly

Nevadans codified a law protecting abortion rights in 1990, but pro-choice activists are worried about the upcoming gubernatorial race. Las Vegas Review-Journal’s Colton Lochhead reported that abortion rights in Nevada would likely be protected post-Roe due to a 1990 statute that “effectively wrote the Roe decision into state law,” allowing "abortions within the first 24 weeks of pregnancy.” UNLV constitutional law professor David Orentlicher said Nevada’s law would only be impacted in the unlikely scenario that the Supreme Court established or approved a “personhood” amendment for fetuses. The Reno Gazette Journal noted that despite the protections in place, some pro-choice activists are worried about the state’s gubernatorial election. Republican gubernatorial candidate Adam Laxalt said that he would “look into proposing changes” to the 1990 law, according to the Reno Gazette Journal, but he later back-tracked those comments, saying that he had “zero interest in ‘undoing’ the 1990 law.” [Las Vegas Review-Journal, 7/6/18; Reno Gazette Journal, 8/17/18]

New Mexico

Current status:

  • State constitutional protection established by case law
  • Pre-Roe ban on the books, but was blocked by the courts
  • Anti-choice governor; pro-choice Senate; pro-choice House

New Mexico has a pre-Roe abortion ban that would criminalize providers, but Democrats are looking to repeal it soon. The Albuquerque Journal reported that “New Mexico is one of a few states with a law on the books making it a crime for an abortion provider to end a women’s pregnancy, except in narrow circumstances.” It’s unclear if this law would be enforced should the Supreme Court overturn Roe, particularly since “the New Mexico Constitution protects the right to choose to a greater extent than the U.S. Constitution,” according to NARAL Pro-Choice America. For Democratic legislators in New Mexico, “rescinding New Mexico’s anti-abortion law will be a priority in the next session” because of Kavanaugh’s potential confirmation to the Supreme Court. Mother Jones’ Sophie Murguia reported that with the November elections, “pro-choice lawmakers will have their best chance in years to finally repeal the law,” that is if voters “elect a governor who will sign the repeal.” [Albuquerque Journal, 6/29/18; NARAL Pro-Choice America, accessed 8/29/18; Mother Jones, 8/21/18]

Oregon

Current status:

  • State law protecting abortion rights
  • Pro-choice governor; pro-choice Senate; pro-choice House

Despite being known for progressive abortion policies, Oregon will have an anti-abortion measure on the ballot in November. The Portland Mercury’s Alex Zielinski wrote that Oregon is seen as a “gold standard” for abortion rights policies because it "does not have any state laws that restrict a woman’s right to get an abortion.” But for “the first time in over a decade … a measure to restrict abortion has a real chance at getting on a statewide ballot” this November. The measure “would keep public dollars from funding any insurance plan that covers abortion—effectively forcing Oregon’s public insurance plans to drop abortion coverage.” Zielinski noted that the measure’s place on the ballot was due to “an unusually effective anti-abortion campaign.” Grayson Dempsey, the executive director of NARAL Pro-Choice Oregon, told Zielinski that “the unexpected success of the … campaign thus far is an important reminder to Oregonians who may believe their rights to safe and accessible abortions are secure.” [The Portland Mercury, 7/25/18]

Utah

Current status:

  • Pre-Roe ban on the books, but was blocked by the courts
  • Anti-choice governor; anti-choice Senate; anti-choice House

Utah’s legislature will likely restrict or ban abortion, even if the Supreme Court doesn’t overturn Roe. The Salt Lake Tribune’s Connor Richards wrote that Utah will be one of the states “chomping at the bit to unravel abortion rights, all at once or piece by piece” if the Supreme Court overturns Roe. Richards pointed to Utah’s history of enacting abortion restrictions, including an unconstitutional abortion ban passed in 1991 that “was struck down by federal courts.” As a result, Utah legislators have “attempted to curb abortion through piecemeal restrictions,” including “a three-day waiting period to obtain an abortion, a ‘fetal pain’ measure that requires anesthesia for a fetus and another, passed this year, requiring women considering an abortion to first complete an ‘information module’ that discourages the procedure.” A Republican legislator told Richards “she intends to refile” her anti-abortion bill and that she believes further anti-choice legislation is likely. [The Salt Lake Tribune, 7/8/18]

Washington

Current status:

  • State law protecting abortion rights
  • Pro-choice governor; pro-choice Senate; pro-choice House

While Washington state has protected abortion rights, pro-choice legislators hold a slim majority in the legislature. Seattle Met’s Hayat Norimine explained that “abortion rights are safe” in Washington, “at least, for now” even if Roe is overturned. Norimine explained that this is because of a 1991 initiative passed by Washington voters which “protected abortion access, in the event Roe v. Wade is overturned.” Although anti-abortion politicians have attempted “to outlaw abortion in the state,” those bills have “failed to ever gain ground.” However, as Eli Goss, the political director at NARAL Pro-Choice Washington, told Norimine “the one-seat majority in the Senate and two-seat majority in the House still leaves abortion access vulnerable; and legislation proposing to reduce access ‘have inched closer and closer each year.’” [Seattle Met, 7/3/18]

Wyoming

Current status:

  • No protections or ban if Roe is overturned
  • Pro-choice governor; pro-choice Senate; pro-choice House

Wyoming has no abortion protections or restrictions in the event Roe is overturned, but there is already just one clinic in the state. BBC News found that Wyoming “sits … somewhere near the middle” in terms of abortion access should Roe fall, because Wyoming “doesn’t have laws … which could ban abortion” absent Roe, and “it also doesn't have any laws that provide additional protections.” However, as BBC noted, “members of Wyoming's government and state lawmakers are for the most part anti-choice, meaning - theoretically - they could support plans to restrict access to abortion.” Wyoming is also classified as a state with only one clinic, though an abortion provider in Wyoming told Vice News, “I’ve heard that there are two others in our county that do medical abortions, but they don’t acknowledge it publicly, and they only offer it to their patients.” [BBC News, 7/7/18; Vice News, 5/23/17]

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