A legislator in Indiana has announced plans to introduce a bill that would ban abortion in that state when its legislature convenes in January. In Texas, lawmakers introduced several pro-life measures on November 14, including a proposed amendment to the state constitution prohibiting abortion to the extent permitted by federal law.
These measures reflect a renewed sense among advocates for life that the political winds will soon be more favorable to abortion limits and protective laws than they have been during the last eight years. In his interview on 60 Minutes the weekend following the election, President-Elect Donald Trump reiterated his intent to appoint pro-life judges to the federal judiciary, and explained that if Roe v. Wade “ever were overturned, it would go back to the states.”
Overturning Roe remains a distant possibility at this juncture. The Supreme Court will retain a pro-Roe majority even after Justice Scalia’s seat is filled by a Trump appointee, and it is unclear whether Chief Justice Roberts would vote to reverse Roe if given the chance. This means that further abortion limits and partial bans merit continued support at both the state and federal levels.
Nevertheless, Trump’s comments and recent initiatives in state legislatures indicate that it is worth exploring what Roe’s reversal would mean for abortion’s legal status throughout the country.
How could Roe be reversed? If, following the next two Supreme Court appointments, a majority of the justices on the Court regard the Roe decision and its progeny as unconstitutional acts of judicial activism, almost any abortion limitation that comes before the Court for review could lead to Roe’s reversal. Even if the law the Court was reviewing did not ban all—or almost all—abortions, all that is needed is for the Court to uphold a more modest abortion regulation on the grounds that the Court in effect had no jurisdiction over the matter, for (to paraphrase Justice Scalia’s often-stated position), the Constitution simply has nothing to say about abortion. Such a ruling would reverse Roe and return the matter of whether and to what extent abortion should be permitted under law to the states and to the Congress where it has or can establish legal authority (for example, the District of Columbia and federal enclaves).
While Roe made abortion legal throughout the country, its reversal along these lines will not automatically make abortion illegal. Many pro-life leaders have long supported the recognition of the right to life of the unborn through recognition of their inclusion in the protections afforded by the Equal Protection Clause of the 14th amendment, but the movement has generally asked the legislative branches to rectify the damage done by the abortion cases via statutes or constitutional amendments that advance this understanding. A reversal of Roe that reflects this interpretation of the scope of the 14th amendment is not likely to be the first step an evolving court would take.
If the Court does reverse Roe, what will abortion law look like in the states? Untangling the web of pre-Roe state statutes, later state and federal court rulings, and post-Roe state abortion limitations reveals that a large majority of states would continue to permit abortion, at least initially. Paul Linton writes in his 2012 review of abortion under state law that following a reversal of Roe and Casey, “No more than eleven States, and possibly as few as eight, would have enforceable laws on the books outlawing most abortions throughout pregnancy.”
Four states have enacted “trigger” statutes that would prohibit abortion in the event that Roe is overruled: Louisiana, Mississippi, North Dakota, and South Dakota. In Mississippi, however, the state Supreme Court recognized a constitutional right to abortion in the state constitution in 1998, meaning that its trigger statute will not be allowed to go into effect.
Of the states that have repealed their pre-Roe abortion statutes, the only one that has subsequently enacted a new statute that would effectively prohibit abortions except to preserve the mother’s life if Roe is overturned is Rhode Island. Because that statute, enacted in 1973, was ruled unconstitutional by a federal court but not enjoined, it would become enforceable upon Roe’s reversal.
Linton explains that of the states that have not repealed their pre-Roe statutes, “most would be ineffective in prohibiting abortions, either because of the broad exceptions provided in the language of the statutes themselves … allowing abortions for reasons of mental health or for undefined health reasons, or because of state constitutional limitations or both.” In some states, the pre-Roe statutes could be rendered ineffective by the state’s subsequent enactment of abortion regulations following the Roe ruling, which could be interpreted as implicitly repealing previous outright bans. Linton concludes that at least four and possibly all seven of the following states would be able to enforce their pre-Roe statutes prohibiting most abortions should Roe be overturned: Arizona, Arkansas, Michigan, Oklahoma, Texas, West Virginia, and Wisconsin.
Thus, eight states would have enforceable laws in their books to prohibit most abortions if Roe is overturned: Arkansas, Louisiana, Michigan, North Dakota, Oklahoma, Rhode Island, South Dakota, and Wisconsin. Three additional states may fall in that category depending on state court interpretations of existing statutes: Arizona, Texas, and West Virginia.
In the other 39 states, plus the District of Columbia, abortion would be legal to varying degrees, depending on that state’s post-Roe abortion regulations and state court rulings, absent new legislation. Five of the states that would fall under this category are listed by the Guttmacher Institute as states that have “expressed intent to limit abortion to the maximum extent permitted.” These are Illinois, Kansas, Kentucky, Missouri, and Ohio.
For example, the preamble to the Illinois Abortion Law of 1975—which followed the repeal of Illinois’ old abortion law in 1973—states that the longstanding policy of the state of Illinois has been “to protect the right to life of the unborn child from conception by prohibiting abortion unless necessary to preserve the life of the mother,” and that if those decisions of the United State Supreme Court outlawing that longstanding practice “are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions unless necessary for the preservation of the mother’s life shall be reinstated.” As Linton explains, the states in this category would nevertheless need to pass new legislation following a Roe reversal to give such sentiments the force of law, as language such as the Illinois preamble’s does not authorize any punishment for violating the law or provide any direction for putting the state’s policy into effect.
While a reversal of Roe would send the matter back to the states, an attempt by Congress to then enact a federal prohibition on abortions cannot be ruled out. How the Supreme Court would rule on such a federal law cannot be predicted: it is possible that the same Court that would reverse Roe would nevertheless strike down a federal law prohibiting abortion, arguing that the matter is left to the states under the Constitution. If a federal prohibition—defended on the grounds that the 14th Amendment’s promise of equal protection of the laws for all persons extends to the unborn—did stand up to judicial review, however, it would override any state court’s ruling regarding state constitutions and abortion “rights” found therein.
The reversal of Roe is a much-needed element of the pro-life movement’s success, but by itself is not sufficient to end abortion in this country. Roe’s reversal, should it come, will not be the end of the fight for life, but only another beginning. It will usher in a new period of urgent and passionate debate in the country regarding the status and right to life of the unborn and the social supports necessary to protect that right. That is a debate that pro-lifers welcome.
Tim Bradley is a research associate at the Charlotte Lozier Institute.