Which states could make abortion illegal if Roe vs Wade is overturned?

Roe v. Wade: Which US states could make abortion illegal if landmark 1973 law is overturned… and what would it mean for women in America? Vital Q&A on looming Supreme Court decision

The Supreme Court is poised to strike down the right to abortion in the United States, according to a bombshell leaked draft of a majority opinion that suggests it may be poised to overturn the famous Roe v. Wade ruling.

The 98-page draft revealed by Politico calls the landmark 1973 Roe v. Wade decision enshrining the right to abortion – which held that access to it is a constitutional right – was ‘egregiously wrong from the start’.

Reproductive rights have been under threat in recent months as Republican-led states move to tighten rules – with some seeking to ban all abortions after six weeks, before many women even know they are pregnant.

The draft was written by Justice Samuel Alito and has been circulating inside the conservative-dominated court since February. The leak of a draft opinion while a case is still pending is an extraordinary breach. 

The court is expected to rule on the case before its term is up in late June or early July. Here, MailOnline looks at what the latest developments mean – and the history of abortion laws in the US:

There are 18 states that have near-total bans on their books, while four more have time-limit band and four others are likely to pass new bans if Roe v. Wade is overturned

Pro-choice activists gather at the US Supreme Court in Washington DC overnight amid a huge public backlash at the news

Protesters gather, chant and hold signs outside the Supreme Court in Washington DC last night amid furious scenes 

WHAT IS HAPPENING?

A draft opinion reportedly circulated among US Supreme Court justices suggests that the court may be poised to overturn Roe v. Wade.

A document labelled ‘Opinion of the Court’ shows a majority of the court’s justices earlier this year threw support behind overturning the 1973 case that legalised abortion across the country.

According to Politico – who published the ‘leaked document’ – the draft opinion shows the court voted to strike down the landmark case. However, it is unclear if the draft represents the court’s final word on the matter.

The paper was labelled ‘1st Draft’ of the ‘Opinion of the Court’ and was said to be referring to a case challenging Mississippi’s ban on abortion after 15 weeks – a case known as Dobbs v Jackson Women’s Health Organisation.

The Supreme Court has yet to issue a ruling in the case, and opinions – and even justices’ votes – have been known to change during the drafting process. 

The court is expected to rule on the case before its term is up in late June or early July.


Norma McCorvey, known as ‘Jane Roe’, is pictured in January 1983 (left) and July 2011 (right). In the 1970s she won a landmark abortion case – but the baby she wished to abort, Shelley Lynn Thornton, was born before the case concluded

Baby Roe: Shelley Lynn Thornton, a 51-year-old mother of three, spoke out for the first time last year. Her biological mother Norma McCorvey was Jane Roe, whose landmark lawsuit Roe v. Wade won women across America the right to have abortions

Leaked Supreme Court Draft … by Brett Bachman

The draft is signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority, who was appointed by former President George W Bush. 

How US states are taking sides on abortion 

If the US Supreme Court votes to overturn the Roe v. Wade decision that legalised abortion nationwide, conservative states will have more confidence that their new limits on abortion will stand while liberal states will feel more urgency to protect and expand abortion rights. Here are some restrictions and protections state legislatures have taken up in 2022:

ABORTION RESTRICTIONS

  • ARIZONA: Republican Governor Doug Ducey in March signed a bill banning abortions after 15 weeks of pregnancy. The measure makes exceptions for medical emergencies, but not for rape or incest. It will take effect later this year if not blocked in court.
  • FLORIDA: Republican Governor Ron DeSantis in April signed a 15-week abortion ban, which allows exceptions for medical emergencies or if the fetus has a fatal abnormality. The exceptions do not allow for abortion past 15 weeks in case of rape, incest or human trafficking. The ban is due to take effect on July 1.
  • IDAHO: Republican Governor Brad Little signed a six-week abortion ban in March that allows family members of the fetus to sue providers who perform abortions past that point, similar to a Texas law enacted last year. The Idaho law was due to take effect in April, but has been blocked by the state Supreme Court pending legal review.
  • KENTUCKY: The legislature in April overrode Democratic Governor Andy Beshear’s veto to enact several abortion restrictions, including a 15-week ban, a requirement that fetal remains be cremated or interred, and a requirement that a combination birth-death or stillbirth certificate be issued for each abortion. The law took immediate effect, suspending clinics’ ability to provide abortions for eight days until a U.S. judge temporarily blocked its enforcement.
  • OKLAHOMA: The Senate in April passed a ban on all abortions except in cases of medical emergency, rape or incest. It relies on private citizens to sue providers and any person who ‘aids or abets’ abortions to be enforced. The House must approve the Senate’s amendments before it heads to Republican Governor Kevin Stitt for signing. With the governor’s approval, it would take effect immediately. Also in April, Oklahoma’s legislature approved a ban on abortions after six weeks of pregnancy, which relies on the same lawsuit enforcement mechanism. It will take immediate effect if signed by Stitt. Mr Stitt signed a bill in April banning abortion except in medical emergencies and penalizing providers who violate the law with up to $100,000 in fines and 10 years in prison. The law is due to take effect in August if not blocked in court.
  • SOUTH DAKOTA: Republican Governor Kristi Noem signed a bill in March requiring women to make three in-person doctor’s visits to complete a medication abortion. The legislation’s implementation depends on the outcome of a federal court case.

ABORTION PROTECTIONS

  • COLORADO: Governor Jared Polis, a Democrat, signed a bill on April 4 codifying the right to have an abortion. The measure immediately took effect.
  • CONNECTICUT: The legislature passed a bill in April that protects anyone who provides abortions, has an abortion or assists someone having an abortion from other states’ restrictions. Among other provisions, the measure bars state agencies from assisting in interstate investigations seeking to hold someone civilly or criminally liable for getting or aiding an abortion. The bill awaits Democratic Governor Ned Lamont’s signature.
  • MARYLAND: The legislature passed a bill that expands the definition of who can provide abortions to include any ‘qualified provider,’ establishes a state-funded abortion provider training program and requires most insurance plans to cover the cost of abortions. Republican Governor Larry Hogan vetoed the bill, but the state’s Democratic-controlled legislature overrode his veto on April 9 and the law is due to take effect on July 1.
  • VERMONT: The Democratic-led legislature in February passed a constitutional amendment that guarantees the right to abortion. It will be on the ballot for voters to approve in November.

 

‘Roe was egregiously wrong from the start,’ the draft opinion states.

It in effect states there is no constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban the procedure.

WHAT IS ROE V. WADE?

The Roe v. Wade decision nearly 50 years ago recognised that the right to personal privacy under the US Constitution protects a woman’s ability to terminate her pregnancy.

On January 22, 1973, the Supreme Court decided that the constitutional right to privacy applied to abortion.

Roe was ‘Jane Roe,’ a pseudonym for Norma McCorvey, a single mother pregnant for the third time, who wanted an abortion.

She sued the Dallas attorney general Henry Wade over a Texas law that made it a crime to terminate a pregnancy except in cases of rape or incest, or when the mother’s life was in danger.

Roe’s lawyers said she was unable to travel out of the state to obtain an abortion and argued that the law was too vague and infringed on her constitutional rights.

Filing a complaint alongside her was Texas doctor James Hallford, who argued the law’s medical provision was vague, and that he was unable to reliably determine which of his patients fell into the allowed category.

The ‘Does’, another couple who were childless, also filed a companion complaint, saying that medical risks made it unsafe but not life-threatening for the wife to carry a pregnancy to term, and arguing they should be able to obtain a safe, legal abortion should she become pregnant.

The trio of complaints – from a woman who wanted an abortion, a doctor who wanted to perform them and a non-pregnant woman who wanted the right if the need arose – ultimately reached the nation’s top court.

The court heard arguments twice, and then waited until after Republican president Richard Nixon’s re-election, in November 1972.

Only the following January did it offer its historic seven-to-two decision – overturning the Texas laws and setting a legal precedent that has had ramifications in all 50 states.

HAVE THERE BEEN OTHER RULINGS SINCE?

On the same day as the Roe v. Wade decision, the justices also ruled in the separate ‘Doe v. Bolton’ case, which authorised each state to add restrictions to abortion rights for later-term pregnancies.

The constitutional right to abortion was later confirmed in a number of decisions, including ‘Webster v. Reproductive Health Services’ in 1989 and ‘Planned Parenthood v. Casey’ in 1992.

In the latter, the court guaranteed a woman’s right to an abortion until the foetus is viable outside the womb, which is typically around 22 to 24 weeks of gestation.

The Planned Parenthood v Casey ruling also affirmed Roe’s finding of a constitutional right to abortion services, but allowed states to place some constraints on the practice. 

WHAT WILL HAPPEN IF ROE V. WADE IS OVERTURNED?

If Roe is overturned, abortion is likely to remain legal in liberal states. More than a dozen states currently have laws protecting abortion rights. 

Numerous Republican-led states have passed various abortion restrictions in defiance of the Roe precedent in recent years.

Republicans could try to enact a nationwide abortion ban, while Democrats could also seek to protect abortion rights at the national level.

Twenty-six states are certain or likely to ban abortion if Roe v. Wade is overturned, according to the pro-abortion rights think tank the Guttmacher Institute.

Of those, 22 states already have total or near-total bans on the books that are currently blocked by Roe, aside from Texas.

The state’s law banning it after six weeks has already been allowed to go into effect by the Supreme Court due to its unusual civil enforcement structure. Four more states are considered likely to quickly pass bans if Roe is overturned.

Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law.

This year, anticipating a decision overturning or gutting Roe, eight conservative states have already moved to restrict abortion rights.

Oklahoma, for example, passed several bills in recent weeks, including one that goes into effect this summer making it a felony to perform an abortion.

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