Updated Feb 1, 2023 - Politics & Policy
Axios Explains: Abortion

Where abortion access is protected without Roe v. Wade

Data: Guttmacher Institute; Table: Alice Feng/Axios

About a quarter of U.S. states have banned or restricted abortion since Roe v. Wade was overturned. But elsewhere, lawmakers are moving to ensure that access to the procedure remains guaranteed, and to accommodate out-of-state providers and patients.

The big picture: There are currently at least 25 states and Washington, D.C., which have measures in place to protect abortion access.

  • Some are weighing steps to expand access and prepare for a likely influx of out-of-state patients seeking care.
  • In 2022, a total of 364 bills and executive orders were introduced to protect abortion access in 33 states and Washington, D.C., according to data from the Guttmacher Institute provided to Axios.

State of play: Voters in California, Vermont and Michigan in November adopted amendments to enshrine abortion protections into their respective state constitutions.

  • Michigan is the only one that previously lacked state laws in support of abortion access.
  • More states are expected to advance similar measures, because constitutional protections are considered the most ironclad and are "very hard to amend," Jessica Arons, senior policy counsel for the American Civil Liberties Union, told Axios.
  • "You can pass a bill that codifies abortion rights ... but if a future election changes the political makeup of the legislature and who's in the governor's office, then they could repeal the statute," Arons added.
  • Additionally, Arons explained that courts can "invalidate" a state law, but not a constitutional amendment because they are "bound" by that document.

Zoom in: Blue states started enacting protective laws even before the Supreme Court's Dobbs decision that overturned Roe.

What else is happening: Governors in California, Colorado, Hawaii, Maine, Massachusetts, Michigan, Minnesota, Nevada, North Carolina, New Mexico, Pennsylvania, Rhode Island and Washington have issued executive orders to add more protections to abortion providers and patients in their states.

Other types of laws: Other states — like Maryland, Washington and Delaware — have moved to loosen restrictions on who can provide and abortion and who can prescribe medication to end a pregnancy.

  • Four states — Colorado, Massachusetts, Montana and Maine — have laws that establish a "bubble zone" that limits protests near the doors of any clinic.
  • States are also considering bills that would require most insurers in a state to provide abortion coverage.

Between the lines: In states like New Mexico, Kansas, Montana, Alaska, Florida and Minnesota, the right to an abortion is protected by a state Supreme Court precedent, according to the Center for Reproductive Rights.

  • However, those rights could be challenged in court in states where there is an anti-abortion majority of lawmakers.
  • Approximately six in 10 U.S. adults (61%) believe abortion should be legal in "all or most cases," according to a survey from the Pew Research Center.

What they're saying: "As most states return for their first legislative sessions since the Dobbs decision and the midterm elections, there's no doubt that abortion will be front of mind for lawmakers — just as it is for their constituents.," said Alexis McGill Johnson, president of Planned Parenthood Action Fund, in a written statement.

  • McGill Johnson said that while more abortion restrictions are expected to be introduced in states, Planned Parenthood also expects "renewed efforts to restore, protect, and expand reproductive freedom."

Below is a summary of the most recent laws protecting or expanding abortion access.

Abortion protections that have been enacted

California: Voters in the state adopted a constitutional amendment that creates a "fundamental right to choose to have an abortion."

  • Gov. Gavin Newsom (D) last year also signed into law a bill to protect abortion providers and patients from bans, lawsuits and penalties in other states, such as the restrictive laws in Texas and Oklahoma. The bill is in effect.

Massachusetts: Ex-Gov. Charlie Baker (R) signed into law a bill to expand protections to reproductive health care and gender-affirming care.

  • The legislation also prohibits state agencies from assisting with other out-of-state investigations or legal proceedings on health care services that might be restricted in other states.

Michigan: Constituents voted in support of a constitutional amendment to create a right to "reproductive freedom," which includes the ability to get an abortion.

Minnesota: Gov. Tim Walz (D) signed into law a bill to guarantee the right to an abortion in the state, which is now considered to be a haven for abortion access in the upper midwest. It is the first state since the fall of Roe to enact a protective law.

  • Walz also signed legislation to protect patients who travel to Minnesota for an abortion from out-of-state legal action.

Vermont: Voters overwhelmingly backed adding a constitutional amendment that protects abortion access and creates an "individual’s right to personal reproductive autonomy," which includes the choice to get an abortion.

Washington: Gov. Jay Inslee (D) signed five bills to protect access to abortion pills, shield patients and providers from out-of-state legal action, enhance protections for people who share their reproductive health data with third party apps, and end out-of-pocket costs for abortion.

Abortion protections that have passed both chambers in the state legislature

New York: Lawmakers officially passed a bill to add an amendment conferring the right to get an abortion into the state's constitution. Voters will get to decide on the addition during the 2024 elections.

Go deeper: Where abortion has been banned now that Roe v. Wade is overturned

Go deeper