Updated May 9, 2022 - Politics & Policy
Axios Explains: Abortion

What abortion access would look like if Roe v. Wade is overturned

Data: Axios Research; Cartogram: Sara Wise and Oriana Gonzalez/Axios

Abortion would immediately become illegal in at least 13 states if the Supreme Court were to overturn Roe v. Wade, and more would likely follow suit quickly.

Why it matters: The Supreme Court is considering a challenge to a Mississippi law that bans abortions after the 15th week of pregnancy. Its decision could throw Roe's survival into question, or at least narrow its scope. A ruling is expected as soon as June.

Where it stands: If the court were to ultimately overturn the precedents that established the constitutional right to an abortion, a patchwork of state laws would govern the procedure.

  • Wyoming is the 13th state to pass a "trigger law" — an abortion ban that would kick in right away if the court completely overturns its precedents.
    • Four states — Alabama, Louisiana, Tennessee and West Virginia — have even amended their state constitutions to prohibit any protections for abortion rights.
  • Oklahoma state lawmakers passed a bill in late April that would modify the language of the trigger law to ban abortions if the court “overrules in whole or in part” Roe and Planned Parenthood v. Casey.
  • Several other states don't have trigger laws in place but would likely move quickly to ban or tightly restrict the procedure if the court clears the way: Florida, Indiana, Montana and Nebraska would be prime candidates, according to analysis from the Guttmacher Institute, a reproductive rights research organization.
  • Alabama, Georgia, Iowa, Ohio and South Carolina have all enacted restrictive laws that were then blocked by federal courts. They could try to revive those policies in a post-Roe world.

At least nine states have pre-Roe abortion bans still on the books, but those would not immediately take effect even if Roe disappears, Elizabeth Nash, a lead state policy analyst for the Guttmacher Institute, a reproductive rights research and policy organization, told Axios back in October.

  • "It would take some kind of action," Nash said, such as an attorney general issuing an opinion, a state filing a court case, etc.
  • For some states, it "might" even be easier to pass a new law prohibiting abortion instead of starting the process to make a pre-Roe ban take effect, Nash noted.

Yes, but: At least 16 states and Washington, D.C., have enacted laws that would automatically keep abortion legal if Roe is overturned.

  • Colorado in March became the latest state to codify the right to having an abortion. Abortion advocates in the state are considering pursuing a ballot measure in 2024 to enshrine abortion access in the state's constitution.
  • In Vermont, where abortion access is already guaranteed, lawmakers have advanced an amendment, which voters will decide on in November, that would protect the right to get an abortion under the state's constitution — which could make it the first state to do so.

Zoom in: In New Mexico, which is a Democratic stronghold, there is no law that explicitly protects abortion rights, but it is protected by state Supreme Court precedent.

  • "Overall, given the political climate and the precedent, ... New Mexico definitely, at this moment, is one of the more protected states," Jessica Arons, senior policy counsel for the American Civil Liberties Union, told Axios.
  • There are other states, like Florida and Kansas, where abortion rights are protected under precedent, but considering their conservative compositions, these decisions could be or are in the process of being challenged.

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