Reproductive rights activists have been warning for years that Roe v. Wade would be vulnerable with a conservative Supreme Court. On September 1, those warnings came true when the Court used a procedural shadow docket ruling to allow a strict six-week abortion ban in Texas to go into effect.
While the ruling didn’t officially overturn Roe, it signaled that the Court might do precisely that in an upcoming case, Dobbs v. Jackson Women’s Health Organization, which will consider the constitutionality of Mississippi’s 15-week abortion ban. If the Court upholds the ban, Roe v. Wade and Planned Parenthood v. Casey will no longer be the controlling legal precedent for abortion laws in the United States.
What will that mean for America? Well, for people in need of the procedure, it may depend on where you live: 12 states have bans and restrictions that would go into place immediately if Roe is repealed. Another seven have unenforced bans from before the 1973 ruling that were never revoked by the state legislatures. If the Supreme Court gets rid of Roe, those bans could go back into effect. And while it depends on what, precisely, any ruling says, intense state-by-state battles will likely be waged, in patchwork fashion, to protect abortion rights. The federal government, for its part, is taking these attacks seriously, responding with lawsuits from the Justice Department. But activists also need to pay close attention to the many state-level attacks on abortion rights. If Roe is overturned in the Dobbs case, state-level bans will suddenly be constitutional and will have to be fought at the local level around the country.
If the Court sides with Mississippi in Dobbs, abortion will become illegal after 15 weeks of pregnancy. You can bet, if it does this, that red states will line up to impose that restriction. Alternatively, the Court could use Dobbs to declare fetal personhood, something amicus briefs are urging, which would outlaw all abortions, period. Many states, like Texas, are also hoping to keep abortions from being performed in their states with currently unconstitutional laws until the decision in Dobbs is handed down. (While the Court’s recent actions are discouraging for abortion activists, abortion is still technically legal in 49 states with varying degrees of accessibility.)
Of course, Texas has the most restrictive abortion law in effect right now, the infamous “bounty hunter” law designed to put enforcement in the hands of anti-abortion citizens rather than government officials. The law forbids abortion after a heartbeat is detected—before many people even know they are pregnant. Current precedent protects a woman’s right to choose abortion up to about 24 weeks. To dodge judicial review, the law forbids state officials to enforce the ban; instead, private citizens are encouraged to bring civil suits against anyone who aids in the performance of an abortion. If successful, individuals who bring the suits could win $10,000 in damages.
While the Texas law, known as SB 8, obviously discourages many doctors from performing abortions in the Lonestar State, there are lawsuits still pending that could succeed in overturning this grotesque and bizarre statute, such as a suitfrom a pro-choice plaintiff asking a Texas District Court, and an odd complaint from Operation Rescue, an anti-abortion organization, against a Texas abortion provider. The complaint makes the embarrassing strategic mistake of involving the state medical board—that is, a state actor—which undoes the procedural creativity of the Texas law placing enforcement in the hands of civilians.
The law, after all, relies on a violation of civil procedure—when someone unrelated to the case who didn’t experience hardship somehow has standing to sue. Therefore, regardless of whether the court overturns Roe, SB 8 might eventually be overturned—though not without preventing thousands of people from accessing abortion until then.
Almost all other state-imposed pre-viability abortion bans—prohibitions of the procedure before the fetus is viable to live on its own—are currently not in effect while they make their way through the federal judiciary. In Mississippi, for instance, abortion is still legal until 20 weeks.
Abortion rights are at risk in other states, too. The Eighth Circuit Court of Appeals heard arguments last week on a Missouri provision to implement an eight-week abortion ban, not currently in effect, if one is seeking an abortion after a diagnosis of Down syndrome. The state argues that the provision isn’t a ban but instead a “regulation” on abortion. This, its lawyers say, makes it constitutional under Roe and Casey. Pro-choice advocates, however, point out that the law clearly bans some abortions at eight weeks—and use of the term regulation over ban is an act of semantic trickery.
In March, Arkansas passed a total abortion ban. The only exception is when the procedure is needed to save the life of the mother; there is no exception for rape or incest. Idaho and South Carolina recently passed fetal heartbeat abortion bans, barring anyone from obtaining an abortion if a heartbeat is detected. Like the Texas law, it effectively bans almost all abortions at about six weeks. Unlike the Texas law, however, bans in Arkansas, Idaho, and South Carolina are currently not in effect as they are considered in federal court.
Flat-out bans are not the only way Republican states are cracking down on abortion rights. TRAP laws, or Targeted Regulation of Abortion Providers, can still make abortion almost impossible to access. Rather than banning abortion, these measures are designed to shut down abortion providers with medically unnecessary restrictions. They often are successful because the statutes count as “regulations.” For example, 38 states require an abortion to be performed by a licensed physician (instead of a prescribing nurse), and 17 require the involvement of a second physician after a certain point in pregnancy, according to the Guttmacher Institute.
In the 2016 case of Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down two such laws, one requiring doctors to have admitting privileges at hospitals and expensive building requirements, like extra-wide hallways for gurneys. Yet many other TRAP laws still stand. Twenty-five states require waiting periods, which can make accessing abortion difficult; 21 states require a parent’s consent if a minor wants an abortion and 11 more require parental notification—unless the pregnant girl can convince a court to allow it without such notice.
What will happen if Roe is overturned? Ultimately, as I said above, it will depend on the exact legal opinion, but it’s fair to say that abortion will likely become completely illegal in many states, unless those states can pass their own legislation protecting abortion—which is all but impossible given that the bans uniformly come from GOP-controlled states.
Twenty states have laws that will protect abortion at the state level even without Roe, according to the Center for Reproductive Rights. Not all of them are solidly blue: Iowa, Kansas, Montana, and Florida have abortion protections in place should the Supreme Court overturn Roe. There are five states that have no law either outlawing or protecting abortion: Wyoming, Colorado, New Mexico, Virginia, and New Hampshire. In other words, without Roe, abortion could remain accessible in these states, but without legal protection. Expect there to be a political fight over it, though, if Roe is no longer the law of the land. In much of red America, the situation will be far more dire. Twelve states have enacted “trigger bans”—meaning that if Roe is overturned, abortion will immediately be illegal in the state. Another seven states have pre-Roe statutes banning abortion that were never repealed.
It is always possible that the decision in Dobbs will reinterpret Roe and Casey but still protect abortion up to a certain point. This, however, is unlikely.
The Justice Department lawsuit is an important straw in the wind. And the House just voted to advance a bill that would protect the right to choose abortion for any reason before the fetus is viable—and would invalidate many TRAP laws imposing waiting periods and restrictions of the ability of physicians to perform the procedure. Given the makeup of the Senate, however, the bill is certain to die of a filibuster.
This means the fight over abortion rights is about to get even more intense. Abortion foes are jubilant at the Texas law and the Court’s apparently radical turn against its own precedent. Pro-choice activists are faced with a state-by-state struggle to protect abortion rights against new attacks—and enshrine abortion rights in state law where politics allows. The good news for the latter is that polls show that abortion rights have strong public support.
The widespread Republican assault on choice could certainly galvanize liberals and suburban women to flock to the polls in the coming elections, whether or not Donald Trump is on the ballot. Clearly, we will need legislation to protect abortion rights from the whims of jurists who have been installed by Republican presidents. The nightmare the pro-choice community has been fearing is here. The question, then, is whether pro-choice activists can successfully center the issue in the 2022 and 2024 elections. It might be the only way we can save America from the dystopic future many of us have been fearing.
