If SCOTUS kills Roe, many states are poised to swiftly enforce abortion bans, sweeping restrictions
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Abortion is still legal in the United States. The recently-leaked draft Supreme Court opinion does not yet change that. But should the high court opt to ignore the bodily autonomy of people who can become pregnant everywhere in America and overturn Roe v. Wade—a nearly 50-year-old federal law—that decision could spark dire consequences and likely at neck-breaking speed.
In mid-April, the Guttmacher Institute updated its 2021 analysis on states that are “certain or likely” to ban abortion without Roe in place. It found that 22 states had laws on the books or constitutional amendments ready to usher in the bans.
Disturbingly, of those 22 states, 13 have existing “trigger” laws that are meant to go into effect if Roe falls. A breakdown of those states is provided below—but it is critical to note that these are states with existing trigger bans on the books.
States like Florida, Indiana, Montana, or Nebraska might not have trigger laws yet, but they are considered regions teetering on abortion access as-is. Other states, like Alabama, South Carolina, Ohio, Iowa, and Georgia have already attempted to strike down access to abortion in the courts. Guttmacher expects those efforts will resume if the high court abandons Roe.
Fifty-three Democratic state party organizations responded to the leak with a statement Tuesday, noting that the “shockwaves” of former President Donald Trump’s presidency—and his impact on the judiciary—are “neither gone nor forgotten.”
But that shouldn’t serve as a deterrent, they argue:
“Many of us live in states where abortion access has been overturned or torn apart by extremist Republicans who have no business interfering in personal health decisions. Abortion bans are not favored by a majority of Americans, and they never will be. They are, however, supported by an extremist group of right wing primary voters and donors—and that’s why the GOP continues to fight to restrict abortion access nationally and in our legislatures.
“In the wake of this decision, the Supreme Court’s anticipated opinion will signal a return of power to the elected representatives of each state and territory. Therefore, it is important now, more than ever, that we protect and exercise those rights that remain intact—our First Amendment rights to associate and to vote representatives into office who will stand firm and protect their constituents from the threats and whims of conservatives.
“Across America, our State Democratic Parties will work tirelessly to recruit, train, and support Democratic candidates for state and federal office who will fight for the right to abortion. We encourage our federal legislators to codify Roe immediately. We cannot and will not wait.”
Related story: From contraception to LGBTQ rights—Alito’s draft opinion on Roe opens the floodgates
The following states each have a trigger ban in place. Many on this list also already have other prohibitions in place—think a six-week or eight-week abortion ban or a “near-total” ban:
- Arkansas
- Idaho
- Kentucky
- Louisiana
- Mississippi
- Missouri
- North Dakota
- Oklahoma
- South Dakota
- Tennessee
- Texas
- Utah
- Wyoming
Arkansas
In Arkansas, it is currently illegal to get an abortion if you are more than 30 weeks pregnant. Arkansas Governor Asa Hutchinson took that a step further in 2019 when he approved a trigger law proposing to automatically ban abortion in the state if Roe was overturned.
Some medical emergencies are allowed as an exception, for now.
Arkansas abortion providers face up to 10 years in prison if caught breaking the law and could also be forced to pay a fine of up to $100,000.
A federal judge last July blocked an attempt by the state to enforce a “near-total” abortion ban there, meaning that regardless of nearly all circumstances, a person would be unable to obtain an abortion.
Idaho
in Idaho, state legislators and Governor Brad Little have a trigger law in place that would make it a felony for health care providers to perform an abortion if “fetal cardiac activity” is detected. The trigger law recommends up to five years in prison for violators.
Another law in Idaho that passed this spring bans abortion at roughly six weeks—or just when fetal cardiac activity, i.e. a heartbeat, can first be detected. At this early stage, a pregnancy is often still unnoticed by the pregnant individual.
And if there are family members of the pregnant person who wish to sue the abortion provider, they could do that under the bill until just recently.
The law was momentarily stopped by the Idaho Supreme Court on April 8.
Kentucky
Senate Minority Leader Mitch McConnell’s home state passed legislation this March that bans abortion after 15 weeks if Roe is overturned and only makes exceptions in cases where the pregnancy could be complicated and abortion is required to stop serious or fatal injury to the mother. There are zero exceptions for rape or incest.
Louisiana
For more than a decade, anti-abortion activists have prepared the way for this moment and in 2006, first passed a trigger law to flatly ban abortions once Roe is overturned. There would be no exceptions for rape or incest once the trigger law is implemented.
In 2019, legislators approved legislation that would stop abortions once cardiac activity was detected, mirroring other red states that lurched even further right on abortion of late.
According to New Orleans Public Radio, the existing trigger law in the books in Louisiana also promises to close the state’s three remaining abortion clinics. According to Guttmacher, of every state in the nation, those pregnant in Louisiana must travel the most distance to get to a state that would allow them to have a safe, legal abortion.
Mississippi
Mississippi is at the center of Monday’s leaked draft opinion from the Supreme Court. Should Roe be overturned, existing trigger laws there would make it so that abortions can be stopped locally within just 10 days.
In 2018, Mississippi passed a law barring abortions at 15 weeks except in the case of severe medical emergencies or fetal abnormalities. The leaked opinion penned by Justice Samuel Alito aligns itself completely with Mississippi and the rights of states to make that determination, not the individuals who are pregnant.
A final decision has not yet been issued but is expected before the end of June.
Missouri
If Roe is overturned, the state’s “Right to Life of the Unborn Child Act” would go into effect with speed. The law, once enacted, makes it a felony to perform an abortion unless there is a medical emergency.
In 2019, the state passed a law that barred abortions after eight weeks, but that is currently under legal review. With the end of Roe, however, the eight-week ban would become enforceable.
In neighboring Kansas, it is important to point that out Republican legislators there have already introduced an anti-abortion amendment to its state constitution that would overturn a Kansas Supreme Court decision that found access to an abortion is a “fundamental” right.
North Dakota
The anti-abortion stranglehold in North Dakota has been flourishing for years. In 2007, the state passed a trigger law that plans to make abortion illegal within 30 days of Roe being struck down.
It provides exceptions for mothers whose lives would be imperiled and those pregnant people who perform an abortion on themselves. Cases of rape and incest are also an exception to the state’s trigger law.
Violators could face up to five years in prison and up to a $10,000 fine.
Oklahoma
For those who become pregnant in Oklahoma, legal abortions are only available in order to save the life of the person giving birth.
There is a “near-total” ban on abortion in the state.
Last month, the Oklahoma Senate passed legislation that barred abortions after six weeks while simultaneously asking the private citizenry to report those individuals they think are providing abortions to pregnant people.
Republican Governor Kevin Stitt also signed a bill into law recently that gives $10,000 as a reward to the person who helped land the successful conviction of an abortion provider.
Last month, state lawmakers also passed legislation that revised language in the trigger law. The revision made it so that Oklahoma could kill access to abortions whether the Supreme Court overrules Roe “in whole or in part.”
South Dakota
Like its neighbor to the north, an abortion trigger law has been in place for more than a decade in South Dakota.
The trigger law would make it a felony to administer or prescribe any “medicine, drug, or substance” or tools used to have an abortion. There is only an exception when trying to preserve the life of the “pregnant female,” the law states.
If enacted through Roe’s reversal, abortion providers could be sentenced to up to two years in prison and face a fine of up to $4,000 or both.
Vocal anti-abortion advocate and South Dakota Governor Kristi Noem said Monday she would hold a “special session” to protect the “right to life” if Roe is in fact overturned later this summer.
Speaking to her haste, under South Dakota’s trigger law, once Roe is declared dead, the new, stricter prohibitions would automatically go into effect.
Tennessee
People seeking an abortion in Tennessee would have just 30 days after Roe is overturned before the state plans to implement its trigger law. Legislators there made all abortions illegal except when the health care would stop the death of the person giving birth.
Tennessee passed the “Human Life Protection Act” in 2019. If Roe was reversed, doctors could face a felony charge for performing an abortion. The person receiving the abortion, however, would be exempt from prosecution.
Texas
Texas has some of the most medieval restrictions and penalties on its books when it comes to abortion access.
The Texas trigger law was passed in June 2021 and makes abortions illegal unless the person giving birth faces serious injury or could die. It would be enforceable 30 days after Roe is overturned and would also make it a felony for health care providers to provide abortions.
Violators of the Texas trigger law could face life in prison and fines of up to $100,000 if convicted.
Last month, prosecutors dropped murder charges against Lizelle Herrera of Texas after she miscarried and attempted a self-induced abortion. Staff at a Texas hospital reported her after she made the private health disclosure. Prosecutors ultimately conceded Herrera did not commit a crime.
Utah
This month two years ago, Utah passed a trigger law that would ban abortions in the state if and when Roe is overturned. Exceptions are made for individuals who are raped or are subject to incest. Pregnant people who might die due to complications from the pregnancy are also excepted. There can also be an exception if the pregnant person has two doctors who state that there are lethal birth defects.
Abortion providers in Utah could face felony charges with the trigger law’s implementation and conservative legislators in the state are already pushing to introduce another new amendment that would strike exceptions, including those exceptions made to preserve the life of the mother and in cases of rape or incest.
Wyoming
In March, the state’s governor Mark Gordon signed a trigger law that would ban abortions within five days of Roe being struck down by the Supreme Court. There are exceptions in place for rape and incest and severe injury.