What If Roe Fell?
Most states repealed abortion bans in effect as of 1973 once Roe made them unenforceable. However, some states and territories never repealed their pre-Roe abortion bans. Now that the Supreme Court has overturned Roe, these states could try and revive these bans.
Abortion bans passed since Roe was decided that are intended to ban abortion entirely if the Supreme Court limited or overturned Roe or if a federal Constitutional amendment prohibited abortion.
Pre-viability gestational bans
Laws that prohibit abortion before a fetus is viable; these laws were unconstitutional under Roe. Gestational age is counted in weeks either from the last menstrual cycle (LMP) or from fertilization.
Laws that prohibit a specific method of abortion care, most commonly dilation and extraction (D&X) procedures and dilation and evacuation (D&E) procedures.
Laws that prohibit abortion if sought or potentially sought for a particular reason. These bans typically 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.Bonnie Steinbock, Preventing Sex-Selective Abortions in America: A Solution in Search of a Problem, The Hasting Center (2017) .
Criminalization of self-managed abortion (SMA)
Some states criminalize people who self-manage their abortion, i.e., end their pregnancies outside of a health care setting.
Laws that are modeled after Texas SB 8, the vigilante law that took effect in September 2021. These laws ban abortion at an early gestational age and are enforced through private rights of action, which authorizes members of the public to sue abortion providers and people who help others access abortion care.
Targeted regulation of abortion providers (TRAP) 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. 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.
Laws that require providers or clinics to notify parents or legal guardians of young peoples seeking abortion prior to an abortion (parental notification) or document parents’ or legal guardians’ consent to a young person’s abortion (parental consent).
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 bodily autonomy.
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.
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.
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.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
States hostile to abortion have made it clear that they want to prohibit abortion entirely, both inside and outside of their borders. Interstate shield laws protect abortion providers and helpers in states where abortion is protected and accessible from civil and criminal consequences stemming from abortion care provided to an out-of-state resident.
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.
Initially, this tool provided 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. Now this digital tool describes the abortion policy of the U.S. states, the District of Columbia, and the five most populous U.S. territories, which requires careful legal analysis of constitutions, laws, regulations, and court decisions. This online tool charts how these governments are responding to the reversal of Roe.
To determine into which category to place each state, D.C., and the U.S. territories, 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 or territory law (“Not Protected”), we then looked to see if the government enacted laws or policies to restrict or prohibit access to abortion care (“Hostile”). Finally, we examined states that have criminalized abortion and prohibited it entirely (“Illegal”). Based on our analysis, we then placed each state, territory, and the District of Columbia into one of these five categories, which exist along a spectrum from “Expanded Access” to “Protected” to “Not Protected” to “Hostile” and, finally, to “Illegal.”
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 young people, the breadth of health-care practitioners who provide abortion care, and protections for clinic safety and access. We assessed hostility and illegality based on abortion bans (pre-Roe, trigger, gestational, reason, method, SB8 copycats, and criminalization of self-managed abortion) and abortion restrictions (TRAP, parental involvement, consent, and physician-only laws). While these bans and restrictions generally have exceptions, this tool 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.
Today, abortion is protected by state law in 21 states and the District of Columbia and is at risk of being severely limited or prohibited in twenty-six states and three territories.
There are nine 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, Illinois, New Jersey, New York, Oregon, Vermont, and Washington
Moving across the spectrum, there are twelve 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, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, and Rhode Island
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
There are twenty 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 have expressed a desire to 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, Georgia, Guam, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Nebraska, North Carolina, North Dakota, the Northern Mariana Islands, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, West Virginia, Wisconsin, and Wyoming
Finally, there are six states in the “Illegal” category. After the Supreme Court overruled Roe v. Wade, states that ban abortion entirely and enforce those bans through criminal penalties are characterized as “Illegal.”
Arkansas, Kentucky, Missouri, Oklahoma, South Dakota, and Utah
By overturning Roe v. Wade, which for nearly 50 years protected the federal Constitutional right to abortion, the the Supreme Court gave states total leeway to restrict abortion or prohibit it all together. Almost half the states are likely to enact new laws as restrictive as possible or seek to enforce current, unconstitutional laws prohibiting abortion. We are seeing states divide into abortion deserts, where it is illegal to access care, and abortion havens, where care continues to be available. Millions of people living in abortion deserts, mainly in the South and Midwest, are forced to travel to receive legal care, which results in many people simply being unable to access abortion for a variety of financial and logistical reasons. It is critical that “Not Protected” states create a state right to abortion, and that the “Protected” states enact laws and policies that move them into “Expanded Access.”
|↑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, 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).|