Source: Guttmacher Institute; Credit: Haidee Chu and Kristin Gourlay/NPR
Twenty-two states have laws in place that will immediately ban abortions or pave the way to ban or severely restrict access to them, following the Supreme Court’s historic decision Friday to overturn Roe v. Wade. This is according to research from the Guttmacher Institute, a group that favors abortion rights. Several additional states appear likely to enact new restrictions.
The court’s ruling in Dobbs v. Jackson Women’s Health effectively overturns the precedent set by the 1973 Supreme Court ruling in Roe v. Wade, which affirmed that a woman has a right to seek an abortion up until the point that the fetus could be “viable” outside of the uterus. It opens the way for states to enact many laws that were tied up in court, and to pass new ones.
How states will ban or restrict abortions
State laws banning or severely restricting abortion access fall into three broad categories: 1) “trigger bans,” which ban abortion under most circumstances and go into effect with the fall of Roe; 2) pre-Roe bans still on the books; and 3) more recent laws that limit abortion to an early gestational age or ban it nearly totally. Some states have laws in more than one of these categories.
Thirteen states have trigger bans, laws that take effect either immediately, by state official certification or after a 30-day waiting period, if Roe is overturned. Once they go into effect, these laws would supersede other laws the state may have on the books, said Elizabeth Nash, a state policy analyst with the Guttmacher Institute.
“The trigger ban applies throughout pregnancy” said Nash. “It does not have a gestational age [restriction].”
Five additional states that don’t have trigger laws do have pre-Roe laws banning abortion which could now be applied, depending on state legislative action or judicial enforcement. (Arizona’s pre-Roe ban has been on the books since before it became a state.)
Numerous states have passed laws that prohibit abortions after an early gestational age, though trigger bans in most of those states trump these. However, among states without trigger laws, four have six-week bans that could take effect, assuming legal challenges against them are dropped.
Sixteen states and the District of Columbia currently have laws that protect the right to abortion, mostly before the point of fetal viability, according to the nonpartisan Kaiser Family Foundation.
How fast trigger laws can be enacted
Trigger laws in three states – Kentucky, Louisiana and South Dakota – are set to take effect immediately, according to Guttmacher research. All three outright ban abortion, except in cases in which the mother’s life is in danger.
In three other states, abortion bans automatically go into effect in 30 days. Those states are Idaho, Tennessee and Texas. (In Texas, abortion services have already been chilled by a state law that allows private citizens to sue abortion providers.)
In the remaining seven states, some sort of certification process is required. That means a state official – like a governor, attorney general or legislative official – must certify or approve the trigger law before it can go into effect. Those states are Arkansas, Mississippi, Missouri, North Dakota, Oklahoma, Utah and Wyoming. (Last month, Oklahoma also passed the nation’s strictest abortion law, which is similar to but even stricter than the one in Texas.)
Enforcement of pre-Roe abortion bans
Some states have laws that pre-existed the Roe ruling and have remained on the books, unenforced, ever since. Whether those laws come into force could depend on the current political leanings in those places, said Guttmacher’s Nash, in an interview with NPR last month.
In states like Michigan and Wisconsin, pre-Roe abortion bans are still technically part of state law. But the Democrats who hold the governors’ and attorneys general offices may not be interested in enforcing them, she said.
In others, like West Virginia and Arizona, Republicans may be more likely to press for enforcement or to ask a court to allow previously challenged laws to go into effect.
“I want to stress that this would happen fairly quickly. We’re not talking months and years. We’re really talking around days and weeks,” Nash said.
How early pregnancy abortion bans restrict abortions
Bans on abortion after six or eight weeks gestational age narrow the window to access an abortion to a few weeks. The bans that had been passed in several states were previously held up in court, except for Texas, but could now become effective depending on court actions.
The start of a pregnancy is measured as the first day of a woman’s menstrual cycle. Pregnancy can occur during ovulation, or within two weeks of the first day of the menstrual cycle. Detecting a pregnancy is possible within about four weeks from the first day of a woman’s period. This means that in states that ban abortions after six weeks, a pregnant woman who decides to have an abortion typically has about two weeks to obtain one in that state.
Additional reporting by NPR’s Sarah McCammon.