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This Friday the Supreme Court issued a landmark ruling, striking Roe v. Wade down as a legal precedent in the country, a drastic change in the legal status of abortion in the U.S. The Court made this decision in evaluating the constitutionality of a Mississippi law banning abortion after 15 weeks of pregnancy, the ruling not only ensures that the Mississippi law is constitutional but determines that abortion is not constitutionally protected.
The Court’s decision comes as no surprise, as a few weeks ago Politico leaked a draft of the ruling, which sparked a political earthquake in Washington D.C. with demonstrators protesting in front of the Court (and even at the Justices’ homes) and Democrats trying to pass a law codifying abortion at the federal level at the last minute, failing in the attempt.
Fact Check: Abortion Has Not Been Outlawed Nationwide
One of the most common misconceptions when discussing this decision is that the Court has outlawed abortion nationwide, which is not true. The ruling striking down Roe and Planned Parenthood v. Casey (a later case that reaffirmed Roe in the 1990s) does not criminalize abortion at the federal level but leaves that power to each state. Hopefully, the eternal political fight over abortion will now focus on local elections in each state, where the mid-term future of abortion will be decided.
However, establishing what the immediate legal future of abortion will be in the post-Roe United States is a difficult task, since each state has a unique case law and political atmosphere, we can divide the legality of abortion into three general groups: states where there will be no major changes, states where abortion limits will be expanded, and “battleground” states where there is no clear law on the legality of abortion post-Roe.
These Are the States Where Abortion Is Likely to Continue Freely
As expected, in states dominated by the Democratic Party, the legal status of abortion will hardly change. Many Democratic legislatures and governors have drafted and passed laws ensuring the legality of abortion within the legal statutes of those states. Some have done this by passing laws with that explicit goal in mind, while others have even changed their constitutions to do so.
There are some states that are not Democratic strongholds where current case law allows abortion in the short term. However, it is possible that the political atmosphere in those states, much more Republican than in the other states, makes it very likely that legislators in those states will try to pass laws restricting abortion.
California: Will not be affected by the elimination of Roe, abortion will remain legal until the viability of the fetus.
Colorado: Will not be affected by the elimination of Roe, the state passed a state law making abortion legal without justification up to 26 weeks.
Connecticut: Will not be affected by the elimination of Roe, the state legalized abortion within its territory up to viability.
Delaware: Will not be affected by the elimination of Roe, the state legalized abortion within its territory up to viability.
Hawaii: Will not be affected by the elimination of Roe, the state legalized abortion within its territory up to viability.
Illinois: Will not be affected by the elimination of Roe, the state legalized abortion within its territory until viability.
Kansas: There will be no major changes, in 2019 the state supreme court ruled that the constitution protects abortion. Only a constitutional amendment could change this. The political environment in Kansas is much more favorable to Republicans than in other states, so this status could change.
Montana: Abortion will remain legal for the time being. In 1999 the state supreme court ruled that abortion is covered by the state constitution. Montana is also a state that tends to be conservative, so this status could change.
Maine: No major change, state law allows pre-viability abortions.
Maryland: No major changes, state law allows pre-viability abortions.
Massachusetts: No major changes, state law allows abortions prior to 24 weeks.
Minnesota: Abortion would be legal. In 1995, the Minnesota Supreme Court ruled that abortion is protected by the state constitution.
Nebraska: Abortion (before 20 weeks) will remain legal for the time being. However, the state legislature could meet in special session and pass a new law to ban abortion, something that is possible due to the state’s political atmosphere, which is more conservative than many states where abortion is legal.
Nevada: Abortion will remain legal up to six months, after a law was passed in 1990.
New Hampshire: Abortions up to six months will remain legal.
New Jersey: Abortion would remain legal following a law passed last year.
Oregon: Abortion will remain legal at all stages of pregnancy without restrictions. Oregon legalized abortion in 1969, four years before Roe.
Rhode Island: If Roe is struck down, abortion will remain legal, the state supreme court reaffirmed a law passed by the state in 2019 legalizing unrestricted abortion up to viability.
Vermont: Abortion would remain legal at all stages of pregnancy, the state codified the legalization of abortion in 2019.
Virginia: Abortion will remain legal since there are no laws prohibiting it. However, the issue may be debated in the state legislature in the future.
Washington: Abortion would remain legal without exceptions until viability. Washington legalized abortion in 1970, three years before Roe.
As in all matters pertaining to American politics, there are a number of states where neither side has full control over the issue or where abortion case law is ambiguous or nonexistent. Of course, the local political situation and dynamics of each is different and will be crucial in determining the legality of abortion in the future.
Alaska: Has no laws prohibiting abortion. The state legislature or the courts will have to fill this loophole now that Roe has been eliminated.
Indiana: There is no specific law legalizing or prohibiting abortion that would go into effect after the elimination of Roe.
New Mexico: There are no laws legalizing or prohibiting abortion.
Pennsylvania: The legal status of abortion is uncertain, as there are no laws prohibiting or legalizing it. The state’s governor has promised to keep abortion legal, but both houses of the state legislature are controlled by the GOP.
Michigan: If Roe is eliminated, a law making abortion illegal would go into effect. However, the Democratic governor is seeking to repeal that law through a lawsuit, so the status of abortion remains uncertain.
States That Are Likely to Ban Abortion
There is a list of states, most of them dominated by Republican governors and legislatures, where there would be a major change in the legality of abortion in the short term. Some of these states have passed laws limiting abortion that would only go into effect after the elimination of Roe (so-called “trigger laws”,) while other states have laws outlawing most abortion cases that were passed before 1973.
Of course, not all of these laws are the same. Some states will adopt stricter measures, banning abortion in most cases (usually with the exception of rape or incest), other states will ban abortion after 15 weeks (so-called “fetal heartbeat bills”,) while some will only outlaw abortion after 20 weeks.
Alabama: The state passed an amendment ensuring that there is no right to abortion in the state and in 2019 signed a law banning abortion in almost all cases except in cases of medical emergencies.
Arizona: Has a pre-Roe law that effectively bans abortion.
Arkansas: Has a law banning abortion, with an exception to save a woman’s life.
Florida: The state legislature passed a law making abortions illegal in Florida after 15 weeks.
Georgia: Since Roe was overturned, the “heartbeat bill” that was passed will go into effect, outlawing most abortions after six weeks.
Idaho: Most abortions would be illegal now that Roe V. Wade was eliminated.
Iowa: There would be no major changes after the elimination of Roe V. Wade, current law prohibits abortion after 20 weeks.
Kentucky: Abortions would be mostly outlawed now that Roe was eliminated.
Louisiana: Abortions will be mostly outlawed now that Roe was eliminated.
Mississippi: Most abortions would be mostly outlawed now that the Court eliminates Roe.
Missouri: Most abortions would be outlawed as the Court eliminates Roe.
North Carolina: Abortion would be illegal after 20 weeks.
North Dakota: Most abortions would be illegal after Roe was eliminated.
Ohio: Since Roe was eliminated, a law making abortions illegal after six weeks is likely to go into effect.
Oklahoma: Since Roe was eliminated, a law making abortions illegal after six weeks will go into effect.
South Carolina: Since Roe was eliminated, a law banning abortions after six weeks will likely go into effect.
South Dakota: Since Roe was eliminated, the law will prohibit all abortions with an exception to save the life of the mother.
Tennessee: Since Roe was eliminated, the law will prohibit all abortions with an exception to save the life of the mother.
Texas: Since Roe was eliminated, the law will prohibit all abortions with an exception to save the life of the mother.
Utah: Since Roe was eliminated, the law will prohibit all abortions with exceptions for saving the life of the mother, incest and rape.
West Virginia: Pre-Roe law banning abortion would go into effect, outlawing abortion.
Wisconsin: Pre-Roe law banning abortion with the exception to save the life of the mother would potentially go into effect since Roe is eliminated.
Wyoming: Since Roe was eliminated, the law would ban all abortions with exceptions to save the life of the mother, incest and rape.
Daniel is a Political Science and Economics student from the University of South Florida. He worked as a congressional intern to Rep. Gus Bilirakis (FL-12) from January to May 2020. He also is the head of international analysis at Politiks // Daniel es un estudiante de Cs Políticas y Economía en la Universidad del Sur de la Florida. Trabajo como pasante legislativo para el Representate Gus Bilirakis (FL-12) desde enero hasta mayo del 2020. Daniel también es el jefe de análisis internacional de Politiks.