Access to abortion would depend on this big factor.
It’s been a wild year for reproductive rights, and not in a good way. On Dec. 1, the Supreme Court heard arguments in a Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, which centers around a Mississippi law that would ban abortions after 15 weeks. The case is widely seen as an opportunity for the court to overturn Roe v. Wade, the landmark decision that made abortion legal nationwide. Should the court overturn or otherwise strip Roe of its power, here’s what could happen next.
If Roe disappeared, the country would likely go back to the state-by-state patchwork of laws that existed before the ruling, in which some states protected the legal right to abortion while others expressly banned it. Before the 1973 decision, abortion was legal in some circumstances in only a handful of states, and New York, Washington, Alaska, and Hawaii had repealed their anti-abortion laws entirely.
However, other states had laws explicitly banning abortion, some of which are still on the books. According to reproductive rights think tank The Guttmacher Institute, eight states — Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, West Virginia, and Wisconsin — all have pre-Roe abortion bans that have gone unenforced, but haven’t been officially repealed, for the past half-century. That’s all in addition to new abortion bans and restrictions that have been passed since, but blocked by courts due to the precedent of Roe. Mississippi is currently fighting to enforce their 15-week ban, while in Texas, a six-week ban was allowed to go into effect on Sept. 1, effectively banning most abortions in the state. Per Guttmacher, 22 states have laws that could restrict legal access to abortion in the absence of Roe, and 12 states have laws passed (but not enacted) post-Roe that would be “triggered” to go into effect, banning all or nearly all abortions, should Roe be overturned.
In contrast to the 22 states with restrictions, several states also affirm a person’s right to abortion in their borders — as of 2021, 15 states and Washington, D.C. all have laws protecting the right to abortion. So people who live in states like California, Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada, and Washington would likely still have access to legal abortion, even without Roe. In short, if Roe disappeared, a person’s access to legal abortion would largely depend on what state they lived in.
Even if abortion access remained legal in parts of the country, it would be be cold comfort to people in areas where it was illegal. Pregnant people seeking abortions could be forced to travel hundreds of miles to get to a state where the procedure was legal in order to terminate an unwanted pregnancy, and that’s if they have the money, time, and support to do so in the first place. For example, should a total abortion ban be allowed to go into effect, a person in Louisiana would have to travel over 660 miles, one way, to get to the nearest state where they could get an abortion, per Guttmacher.
But even if Roe is overturned, that doesn’t necessarily spell a permanent end to national abortion rights. Roe is a Supreme Court ruling based on the court’s interpretation of the due process clause of the 14th Amendment, not an actual law — which means that yes, Congress could in fact pass a law or laws securing legal abortion around the country. In fact, there’s a significant legislative effort in the works even as Roe is under threat. The Women’s Health Protection Act (WHPA) is a bill that would expressly confirm the right to abortion and prohibit medically unnecessary restrictions like mandatory waiting periods or medically inaccurate “counseling.” The bill was first introduced in the House of Representatives in 2013, and has been reintroduced in every change of Congress since. In September 2021, it passed the House along party lines, but as of December 2021 has not yet been taken up by the Senate.
The question of what would happen should Roe be overturned is suddenly even more urgent for many reproductive rights advocates following the Dec. 1 hearing in Dobbs v. Jackson. It is the first major abortion case at the Supreme Court since President Donald Trump appointed three conservative justices, tilting the court decisively rightward. During oral arguments, members of the new conservative majority seemed to indicate they were open to overturning, or at least gutting, abortion rights. “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” Justice Brett Kavanaugh asked during the hearing. Meanwhile, Justice Amy Coney Barrett suggested because pregnant people could theoretically give up unwanted babies for adoption, abortion was not necessary.
While there is no set date for the Supreme Court to return a decision, the court usually reveals the decisions in its high-profile cases (and this definitely counts) in June. In the meantime, you can still take action to support abortion rights by contacting your legislators about the WHPA and donating to an abortion fund.