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What’s Next if ‘Roe v. Wade’ Falls? More Than Half of States Expected to Ban or Restrict Abortion

What’s Next if ‘Roe v. Wade’ Falls? More Than Half of States Expected to Ban or Restrict Abortion

(Oona Tempest/KHN)

If the Supreme Court’s conservative majority affirms the leaked decision overturning abortion rights in the U.S., the effects would be sweeping for 40 million women in more than two dozen states where Republican-led legislatures have been eagerly awaiting the repudiation of the right to terminate a pregnancy.

Long before the Supreme Court heard challenges to Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, seminal decisions that affirmed a federally protected right to abortion, conservative lawmakers in 14 states had crafted so-called trigger laws that would automatically go into effect in the event a nationwide right to abortion were struck down, according to a KFF analysis. The Guttmacher Institute, a research organization that supports abortion rights, has identified an additional dozen states likely to restrict or ban abortion without Roe.

The list of states with trigger laws includes deep-red bastions such as Mississippi, Oklahoma, and Idaho, but also Texas, the nation’s second-most-populous state. Texas, with a population of 30 million, is a region of particular concern for abortion rights advocates, who have already been grappling with the impacts of a 2021 law that bans nearly all abortions after about six weeks of pregnancy.

Under a law passed last year by the Republican-led legislature and signed by Gov. Greg Abbott, Texas would criminalize abortion, except in cases in which the mother is facing death or severe impairment, 30 days after a Supreme Court ruling that strikes down Roe. Under the law, doctors who perform abortions could be sentenced to life in prison and fined up to $100,000. And if Roe falls, Texas will be nearly encircled by states — Oklahoma, Arkansas, and Louisiana — with their own trigger laws, creating a vast region where women have no access to legal abortion services.

Politico published the leaked draft decision Monday night. The court has confirmed the draft is authentic but said it is not final. Nonetheless, reproductive and sexual health rights advocates are girding for the worst.

“This is going to impact our human and civil rights,” said Aimee Arrambide, executive director of Avow Texas, a legislative and policy advocacy group. For low-income people and minors who “don’t have the means to travel, the distances [to obtain an abortion] will be exponentially longer,” Arrambide said.

A Supreme Court ruling reversing a woman’s right under privacy protections to terminate her pregnancy would sharply split the country into states that staunchly support abortion rights and states that are staunchly anti-abortion.

“We’ve had a racial reckoning in this country, but we have yet to have that reckoning where we take seriously the value, equality, and lives of women,” said Michele Goodwin, a professor of law at the University of California-Irvine.

In the leaked draft, Justice Samuel Alito wrote, “Roe was egregiously wrong from the start.” He added that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely,” referring to the 14th Amendment.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” wrote Alito.

If the court’s conservative majority affirms the draft decision, abortion would be expressly protected in 15 states and Washington, D.C.

Gov. Gavin Newsom and other Democratic lawmakers in California, which already guarantees the right to abortion through state law and court decisions, aim to put a constitutional amendment before voters in November that would enshrine the right to abortion.

“We know we can’t trust the Supreme Court to protect reproductive rights, so California will build a firewall around this right in our state constitution,” Newsom and Democratic legislative leaders said in a statement.

Democratic lawmakers had already proposed a wave of measures this year to shore up abortion access for Californians, as well as women traveling there from states that restrict abortions. Among the measures are bills that would increase the ranks of clinicians who can provide abortions, boost legal protections for those who perform abortions, and create a fund to help women seeking abortions with expenses such as travel and lodging. The measures are pending in the legislature.

In March, Newsom signed a law to eliminate abortion-related copayments and other out-of-pocket costs for women covered by state-regulated health plans, effective Jan. 1, 2023.

In the Mountain West, Colorado is viewed as an island of abortion access after codifying the right into state law last month. Dr. Rebecca Cohen, medical director of the Comprehensive Women’s Health Center in Denver, said her clinic has seen increased demand from out-of-state patients for months.

“We're seeing people at later gestational ages, and we're seeing a lot more people with much more medical complexity,” said Cohen, adding that the clinic’s services extend beyond health care. “We're helping people find hotel rooms. We're helping people find transportation.”

On the other side of the spectrum, 26 states are certain or likely to ban or severely restrict abortion without Roe, according to the Guttmacher Institute.

Georgia — which has emerged as a critical access point for abortion services in the South — is among them. Gov. Brian Kemp vowed that if the Supreme Court’s leaked ruling becomes final, he would lead efforts to criminalize abortion.

“If abortion access is limited in Georgia, it affects the entire region dramatically,” said Kwajelyn Jackson, executive director of the Feminist Women's Health Center, an Atlanta clinic that provides medication abortions and abortion procedures.

Georgia has many more clinics that provide abortions than neighboring states, she said, making it a “haven” for people seeking care from states like Alabama and Mississippi. Jackson said her main concern now is making sure that people know the leaked draft is not the court’s final decision.

“We want to continue to remind people that if they need abortion care today, that abortion is still legal and accessible to them, and don't want people to get so confused by the headlines that they are not able to access the care they need immediately,” she said.

The court’s draft decision would put the United States at odds with nearly every developed nation. “We are seeing countries like Mexico, Argentina, and Ireland that have historically criminalized abortion now make abortion available to people in their countries,” said Alina Salganicoff, director of women’s health policy at KFF.

If abortion is criminalized across the U.S., “it will not stop women from having abortions,” she added. “Before abortion was legal, women went through extreme means, often risking their life and fertility to get abortions. We have other options now, but it’s not going to dissuade women from seeking abortions.”

Anti-abortion lawmakers and activists have vowed to go further than state-level bans, including barring women from traveling out of state for abortions. Anti-abortion and religious groups have embarked on a full-throttle push for Congress to enact a federal ban that would outlaw the procedure in all 50 states.

In a recent letter to congressional Republican leaders, anti-abortion groups noted the historic moment within their grasp.

“The prospect of seeing Roe v. Wade undermined or overturned and the momentum currently behind the pro-life movement is unlike any we have seen before,” said the letter, signed by dozens of major pro-life groups. “Therefore, as Republican leadership readies its conservative agenda for the next year, we urge you to ensure that any commitment to America includes a bold, clear, and articulate plan to protect the most vulnerable among us, the unborn.”

At the same time, the Biden administration and Democratic leaders have vowed with equal measure to pursue a path to enshrine abortion rights in federal law.

“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” President Joe Biden said in a prepared statement. “And it will fall on voters to elect pro-choice officials this November.”

KHN correspondents Rae Ellen Bichell, Rachel Bluth, and Sam Whitehead contributed to this report.