Supreme Court May Soon Overturn Roe V. Wade—Here Are The States With Abortion Protections If It Does

Topline

The Supreme Court appears poised to strike down the landmark abortion ruling Roe v. Wade in the coming weeks, according to a draft opinion obtained by Politico—but several states have already passed laws and constitutional provisions that will still protect the right to an abortion even if the Supreme Court doesn’t.

Key Facts

Sixteen states and Washington, D.C., have some form of legal protection for abortion enshrined in state law, as compiled by the pro-abortion rights Guttmacher Institute: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington.

New York’s law states that pregnant individuals have “the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion,” while Vermont’s law states that it is intended to ensure the right to access reproductive health care is “not denied, restricted, or infringed by a governmental entity.”

Colorado, New Jersey, Oregon, Vermont and Washington, D.C., have the most permissive laws, allowing abortion throughout pregnancy, while other states say abortions are explicitly allowed before the fetus is viable, as is currently allowed under Roe’s ruling.

State supreme courts in Alaska, Florida, Iowa, Kansas, Minnesota and Montana have ruled the right to an abortion is protected under their respective state constitutions, which would remain in effect if Roe is overturned or weakened, as state-level rulings are not affected by U.S. Supreme Court decisions.

Florida has enacted a 15-week abortion ban anyway, however—which is now being challenged in court—and Republicans in many of those states are trying to have those rulings struck down.

The Center for Reproductive Rights projects that in New Hampshire and New Mexico, abortion would likely remain legal but could be under threat if Roe is overturned, as the liberal-leaning states do not have many restrictions on abortion, but also do not yet have express legal protections for it.

What To Watch For

More protections to be enacted. California Gov. Gavin Newsom (D) said the state would propose a constitutional amendment protecting abortion after the draft opinion was published, and Vermont voters will decide in November whether their state’s constitution should be amended to add protections. More states could also enact laws that would help people in states that have banned abortion, such as legislation recently passed in Connecticut that expands the number of providers who can perform an abortion and shields residents from legal liability if they help people in states where abortion is outlawed to have the procedure.

Contra

While some states will explicitly protect abortion rights, many others are poised to ban abortion immediately upon a Supreme Court decision that overturns Roe, and Planned Parenthood reports 25 million women of reproductive age live in states that could overturn abortion. Thirteen states have “trigger bans” in effect that will ban abortion immediately or soon after the ruling comes out: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming. Another five states still have abortion bans from before Roe was decided that will go back into effect if it’s struck down—Alabama, Arizona, Michigan, West Virginia and Wisconsin—and other states have six-week bans that will likely go into effect in Roe’s absence.

Key Background

The Supreme Court is now weighing whether to uphold Mississippi’s 15-week abortion ban and let states outlaw abortion, with a final ruling expected in June before the court’s term wraps up. A draft opinion from February obtained by Politico shows a majority of justices were at least then in favor of overturning Roe entirely, with Justice Samuel Alito writing for the court that the 1973 ruling is “egregiously wrong.” Chief Justice John Roberts has confirmed the draft’s authenticity, but said Tuesday it should not be taken as the court’s final opinion or any of the justices’ final positions. The ruling comes as GOP-led states have increasingly moved to enact abortion bans ahead of the ruling, including a six-week ban in Texas that courts have left stand—and other states are now copying—and multiple measures that effectively ban abortion entirely in Oklahoma.

Further Reading

Here’s What Will Happen If The Supreme Court Overturns Roe V. Wade (Forbes)

How Americans Really Feel About Abortion: The Sometimes Surprising Poll Results As Supreme Court Reportedly Set To Overturn Roe V. Wade (Forbes)

What If Roe Fell? (Center for Reproductive Rights)

Abortion Policy in the Absence of Roe (Guttmacher Institute)