What If Roe Fell?

If Roe v. Wade were weakened or overturned, abortion rights would be protected in less than half of the U.S. states and none of the U.S. territories.

The Center for Reproductive Rights “What if Roe fell?” tool examines several legal factors, including laws, constitutions, and court decisions on abortion—and assigns each state, territory, and the District of Columbia to one of four categories: Expanded Access, Protected, Not Protected, and Hostile.  Please use this interactive tool to find out more.

Expanded Access Protected Not Protected Hostile

What If Roe Fell?

Glossary

Abortion Bans

Pre-Roe bans

States and territories passed these abortion bans before Roe was decided, but the landmark decision made them unenforceable. If Roe is overturned, these laws could be revived in one of two ways. In some states, a ban was never declared unconstitutional or blocked by the courts, and therefore if Roe is limited or overturned, state officials could seek to enforce it. In other states, where courts have blocked or limited a pre-Roe ban based on the decision, officials could file court actions asking courts to activate the ban if Roe fell.

Trigger bans

Abortion bans passed since Roe that could become effective if the Supreme Court limited or overturned Roe. None of these bans is enforced.

Pre-viability gestational bans

Laws that prohibit abortion before a fetus is viable; these laws are unconstitutional under Roe. Gestational age is counted in weeks either from the last menstrual cycle (LMP) or from fertilization. Some of these bans are not enforced.

Method bans

Laws that prohibit a specific method of abortion care, most commonly dilation and extraction (D&X) procedures and dilation and evacuation (D&E) procedures. Some of these bans are not enforced.

Reason bans

Laws that prohibit abortion if sought or potentially sought for a particular reason. These bans name sex, race, and genetic anomaly as prohibited reasons. However, there is no evidence that pregnant people are seeking abortion care because of the sex or race of their fetus.[1]Bonnie Steinbock, Preventing Sex-Selective Abortions in America: A Solution in Search of a Problem, The Hasting Center (2017) Some of these bans are not enforced.

Criminalization of self-managed abortion (SMA)

Some states criminalize people who self-manage their abortion, i.e., perform it outside of a clinical setting.

Abortion Restrictions

TRAP laws

Targeted regulation of abortion providers laws single out physicians who provide abortion care and impose various legal requirements that are different from and more burdensome than those imposed on physicians who provide comparable types of care. These laws do not increase patient safety and are counter to evidence-based clinical guidelines. [2]See, e.g., ACOG, Increasing Access to Abortion (Nov. 2014, reaffirmed 2019); National Abortion Federation, Clinical Policy Guidelines for Abortion Care (2018)

TRAP laws fall into several categories, including regulation of locations where abortion is provided and/or facility specifications, provider qualifications, and reporting requirements. Compliance is often costly and can require unnecessary facility modifications. (Some of these laws are not enforced.)

Parental involvement

Laws that require providers or clinics to notify parents or legal guardians of minors seeking abortion prior to an abortion (parental notification) or document parents’ or legal guardians’ consent to a minor’s abortion (parental consent). In order to be constitutional, parental involvement laws must include a process whereby a judge can approve a minor’s petition without parental involvement. [3]See Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 94, 96 S. Ct. 2831, 2852, 49 L. Ed. 2d 788 (1976) (“the State does not have the constitutional authority to give a third party an … Continue reading (Some of these laws are not enforced.)

Consent laws

Laws that require pregnant people to receive biased and often inaccurate counseling or an ultrasound prior to receiving abortion care, and, in some instances, to wait a specified amount of time between the counseling and/or ultrasound and the abortion care. These laws serve no medical purpose but, instead, seek to dissuade pregnant people from exercising their fundamental right. (Some of these laws are not enforced.)

Hyde Amendment

In 1976, Rep. Henry Hyde (R-IL) successfully introduced a budget rider, known as the Hyde Amendment, that prohibits federal funding for abortion. Congress has renewed the Hyde Amendment every year since its introduction.

Abortion Protections

Statutory protections for abortion

Laws passed by states that protect the right to abortion.

State constitutional protection

A declaration from the state’s highest court affirming that the state constitution protects the right to abortion, separately and apart from the existence of any federal constitutional right.

Abortion Access

Public funding

States are required to provide public funding through the state Medicaid program for abortion care necessitated by life endangerment, rape, or incest. States can also dedicate state-only funding to cover all or most medically necessary abortion care for Medicaid recipients.

Private insurance requirements

States can require private health-insurance plans that are regulated by the state to contain specific benefits, including abortion coverage.

Clinic safety and access

Laws that prohibit, for example, the physical obstruction of clinics, threats to providers or patients, trespassing, and telephone harassment of the clinic, and/or create a protected zone around the clinic.

Abortion Provider Qualifications

Scope of practice for health-care practitioners is regulated by state legislatures and licensing boards. Generally, state legislation does not outline specific medical care that is within or beyond a practitioner’s scope of practice. However, many states have treated abortion differently by restricting the provision of abortion to physicians. Other states have taken proactive measures to expand the types of clinicians who may lawfully provide abortion care by repealing physician-only laws or expressly authorizing physician assistants, certified nurse midwives, nurse practitioners, and other qualified medical professionals to provide abortion care through legislation, regulations, or attorney general opinions.[4]See, e.g., Me. Rev. Stat. Ann. tit. 22, § 1598(1). Law was amended to allow physician assistants and advanced practice nurses to also perform abortions. See H.P. 922, 129th Leg., 1st Reg. Sess. … Continue reading

Repeal by implication

When a law is expressly repealed, the legislature passes a new law that explicitly states that the old law is repealed.[5]See, e.g., Mass. Gen. Laws ch. 272, § 19, repealed by S.B. 784, 190th Gen. Assemb., Reg. Sess. (Ma 2018).  Under the doctrine of implied repeal, if a new statute is enacted that conflicts with an older statute, the older statute is said to have been “repealed by implication” and can no longer be enforced.

In order to argue successfully that an abortion ban has been repealed by implication and is therefore no longer enforceable, it is usually necessary to show that the state has subsequently enacted laws regulating abortion that cannot be reconciled with the ban. For example, after Roe was decided, the Louisiana State Legislature passed several statutes regulating abortion and setting forth the circumstances under which abortions would be permitted, without explicitly repealing its pre-Roe ban. A federal district court reviewing the laws found that an irreconcilable conflict existed between the statutes stating when abortion would be legal and the pre-Roe ban making abortion illegal. Therefore, the ban was repealed by implication. [6]Planned Parenthood of Nashville v. McWherter, 817 S.W.2d 13, 16 (1991); see also McCorvey v. Hill, No. 03-10711 (5th Cir. Sept. 14, 2004) (Texas’s pre-Roe statute repealed by implication).

However, this determination is often not so clear-cut. For example, many states have enacted restrictions on the abortions that are permitted in the state—such as a requirement that pregnant people wait twenty-four hours after receiving certain state-scripted and biased information before obtaining an abortion (“mandatory-delay/biased-counseling” laws)—rather than passing a statute affirmatively setting forth the conditions under which abortions are permitted. In this situation, a court could decide that these later enacted statutes were not irreconcilable with an earlier ban statute by interpreting the mandatory-delay/biased-counseling law as a regulation on the few abortions that might be allowed under the ban statute. To further complicate things, although most states recognize the doctrine of implied repeal, courts in many states are reluctant to find implied repeal. Thus, while repeal by implication may be the best legal argument available against immediate enforcement of a pre-Roe ban, abortion rights advocates should consider other strategies as well.

In effect

A law has been enacted, and the effective date in the legislation has passed.

Enjoined

The state cannot enforce a law that would otherwise be effective because of the decision by a court to temporarily or permanently enjoin its enforcement.

Project Summary

What If Roe Fell provides an overview of what could happen to abortion rights in the fifty states, the District of Columbia, and the five most populous U.S. territories if the U.S. Supreme Court were to limit or overturn Roe v. Wade, the landmark Supreme Court ruling from 1973 that established abortion as a fundamental right. Understanding the abortion policy of a state, the District of Columbia, or a U.S. territory requires careful legal analysis of constitutions, laws, regulations, and court decisions, as well as legislative and access considerations. This report provides a snapshot of that analysis and anticipates how these governments would respond to a limitation or reversal of Roe and the likelihood that abortion rights would remain secure in some places and prohibited in others.

In order to contextualize laws and policies on abortion, this report provides an overview of international human rights standards and the right to abortion, as well as the U.S. legal landscape, including current constitutional protections for abortion and the types of cases making their way to the Supreme Court. Even while Roe remains the law of the land, this report acknowledges that because of federal, state, and territory abortion restrictions, too many people currently are unable to access abortion care and are living in what we describe as a “No-Roe” reality. Finally, this report offers some potential solutions, including federal and state legislation, and highlights the importance of civic engagement and funding abortion care, all of which could move a state, district, or territory along the spectrum from “Hostile” to “Expanded Access.” All terms used in this report are defined in a glossary. All laws included in this report are in effect, unless otherwise noted, including legislation enacted in 2019.

Between January 1, 2019, and November 15, 2019, eighteen states have enacted forty-six laws that prohibit or restrict abortion. Nine states enacted unconstitutional pre-viability bans in 2019, including Alabama’s total ban; the six-week bans enacted in Georgia, Kentucky, Louisiana, Mississippi, and Ohio; Missouri’s eight-week ban; and the eighteen-week bans enacted in Arkansas and Utah. On the other hand, states such as Illinois, Maine, Nevada, New York, Rhode Island, and Vermont have enacted laws that create a state right to abortion.

Methodology

To determine how a limitation or reversal of Roe could affect abortion rights, we first examined whether the right to abortion is protected under state, territory, or D.C. law (“Protected”); if it is, we looked to see whether the state, territory, or District of Columbia enacted laws or policies that enhanced access to abortion care (“Enhanced Access”). If abortion is not protected by state, territory, or D.C. law

(“Not Protected”), we then looked to see if the government enacted laws or policies to restrict or prohibit access to abortion care (“Hostile”). Based on our analysis, we then placed each state, territory, and the District of Columbia into one of these four categories, which exist along a spectrum

from “Expanded Access” to “Protected” to “Not Protected” and, finally, to “Hostile.” The laws and policies identified as creating enhanced access to abortion include public funding and the requirement that abortion be included in private insurance coverage, unrestricted access for minors, the breadth of health-care practitioners who provide abortion care, and protections for clinic safety and access. We assessed hostility based on abortion bans (pre-Roe, trigger, gestational, reason, and method) and abortion restrictions (TRAP, parental involvement, consent, and physician-only laws). While these bans and restrictions generally have exceptions, this report does not list them in detail because those exceptions do not provide meaningful access and usually are difficult to utilize. Unless otherwise noted, all bans and restrictions discussed are in effect.

Findings

Based on our analysis described above, if the Supreme Court were to limit or overturn Roe, abortion would remain legal in twenty-one states and likely would be prohibited in twenty-four states and three territories.

Expanded Access

There are eight states in the “Expanded Access” category. In these states, the right to abortion is protected by state statutes or state constitutions, and other laws and policies have created additional access to abortion care.

  • California, Connecticut, Hawaii, New Jersey, New York, Oregon, Vermont, and Washington

Protected

Moving across the spectrum, there are fourteen states and the District of Columbia in the “Protected” category, meaning that the right to abortion is protected by state law but there are limitations on access to care.

  • Alaska, Colorado, Delaware, the District of Columbia, Florida, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, and Rhode Island

Not Protected

There are three states and two territories in the “Not Protected” category. In these places, abortion may continue to be accessible but would be unprotected by state and district law. In some of these states, it is unclear whether the legislature would enact a ban if Roe is limited or reversed, but concern is warranted.

  • New Hampshire, New Mexico, Puerto Rico, U.S. Virgin Islands, and Virginia

Hostile

Finally, there are twenty-five states—nearly all of which are situated in the central and southern parts of the country—and three territories that we characterize as “Hostile,” meaning they could immediately prohibit abortion entirely. These states and territories are extremely vulnerable to the revival of old abortion bans or the enactment of new ones, and none of them has legal protections for abortion.

  • Alabama, American Samoa, Arizona, Arkansas, Georgia, Guam, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, the Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming

Conclusion

If the Supreme Court gives states more leeway to restrict abortion or prohibit it all together, almost half the states would likely enact new laws as restrictive as possible or seek to enforce current, unconstitutional laws prohibiting abortion. States would then be divided into abortion deserts, where it would be illegal to access care, and abortion havens, where care would continue to be available. Millions of people living in abortion deserts, mainly in the South and Midwest, would be forced to travel to receive legal care, which would result in many people simply being unable to access abortion for a variety of financial and logistical reasons. However, the Supreme Court does not need to overturn Roe for the twenty-four “Hostile” states to act. Allowing states to increase enforcement of abortion restrictions that have no proven medical benefits will result in access being further decreased or essentially prohibited. It is critical that the five “Not Protected” states and the District of Columbia create a state right to abortion, and that the fourteen “Protected” states enact laws and policies that move them into “Expanded Access.” States would then be divided into abortion deserts, where it would be illegal to access care, and abortion havens, where care would continue to be available.

References

References
1 Bonnie Steinbock, Preventing Sex-Selective Abortions in America: A Solution in Search of a Problem, The Hasting Center (2017)
2 See, e.g., ACOG, Increasing Access to Abortion (Nov. 2014, reaffirmed 2019); National Abortion Federation, Clinical Policy Guidelines for Abortion Care (2018)
3 See Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 94, 96 S. Ct. 2831, 2852, 49 L. Ed. 2d 788 (1976) (“the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy”).
4 See, e.g., Me. Rev. Stat. Ann. tit. 22, § 1598(1). Law was amended to allow physician assistants and advanced practice nurses to also perform abortions. See H.P. 922, 129th Leg., 1st Reg. Sess. (Me. 2019); Wash. Rev. Code § 9.02.110; Wash. Att’y Gen. Op 2004 No. 1 (2004); Wash. Att’y Gen. Op 2019 No. 1 (2019).
5 See, e.g., Mass. Gen. Laws ch. 272, § 19, repealed by S.B. 784, 190th Gen. Assemb., Reg. Sess. (Ma 2018).
6 Planned Parenthood of Nashville v. McWherter, 817 S.W.2d 13, 16 (1991); see also McCorvey v. Hill, No. 03-10711 (5th Cir. Sept. 14, 2004) (Texas’s pre-Roe statute repealed by implication).