Ethics, Law, Women's Health

After Leaked Roe Ruling, GOP Weighs Stricter Abortion Bans

Supreme Court building

By Christine Vestal

If, as expected, the U.S. Supreme Court decides as early as next month to overturn Roe v. Wade, just how quickly Republican-dominated legislatures will act to restrict abortion and how far they will go to eliminate the procedure is uncertain. 

But recent rhetoric from state officials and events in state capitols offer some clues. 

GOP officials in at least eight states—Arkansas, Florida, Idaho, Indiana, Montana, Nebraska, South Carolina and South Dakota—have called for special legislative sessions to consider new abortion restrictions since May 3, the day Politico leaked a preliminary high court opinion overturning Roe, the 49-year-old decision that guarantees the right to abortion.

All the states on the list already have court-blocked abortion bans on the books that could be made effective if the high court overturns Roe. But some officials said they wanted to go further.   

In South Carolina, for example, Republican Gov. Henry McMaster said he was willing to call the legislature back into session and would support anti-abortion legislation that makes no exceptions for rape or incest. In February, the state enacted a ban on the procedure after six weeks of pregnancy, with exceptions for rape, incest, fetal anomalies and threats to the health of the patient. The bill was put on hold by a federal court. 

At the same time, the Republican sponsor of a Louisiana abortion ban that would outlaw all abortions from the moment of fertilization and hold both the provider and the patient liable for felony homicide drew criticism even from other anti-abortion officials. 

Staunchly anti-abortion Gov. John Bel Edwards, a Democrat, said he would veto the measure if it passed, writing in a statement, “To suggest that a woman would be jailed for an abortion is simply absurd.” 

Anti-abortion organizations Louisiana Right to Life and Louisiana Family Forum also opposed the bill, along with some fellow Republicans in the legislature. The bill has since been amended to remove the criminalization provision, and it is considered unlikely to pass this legislative session.

More States Shield Against Rogue Abortion Prosecutions 

Emboldened by the high court’s conservative majority, some states were tightening restrictions even before the preliminary ruling leaked. For example, a new Oklahoma law banning abortion at six weeks of pregnancy—before most women even know they’re pregnant—took effect one day after the draft opinion became public. 

In the two weeks since, clinics in Oklahoma—where neighboring Texans had been seeking abortions ever since their state effectively prohibited the procedure last year—were forced to abruptly stop performing most abortions, though they remain open to provide other reproductive health needs.

In addition to the six-week ban, which includes a Texas-style citizen enforcement provision that offers a $10,000 reward for suing an abortion provider or anyone suspected of helping a person obtain an abortion, Oklahoma Republican Gov. Kevin Stitt in April signed an even stricter law slated to take effect in August. 

That law would ban all abortions at conception except in a medical emergency and would carry a penalty of $100,000 and 10 years in prison for anyone who performs the procedure. 

In the meantime, an attempt by Democrats in Congress to pass a federal statute enshrining the right to abortion failed in the U.S. Senate last week. And thousands of abortion rights supporters marched in Washington, D.C., and other cities across the country Saturday, protesting the court’s expected decision to undo federal abortion rights and return the issue to states.  

Federal Guardrails

In 1973, the high court ruled in Roe v. Wade that women have a constitutional right to choose to end a pregnancy and prevented states from banning or excessively restricting abortion prior to the third trimester, or roughly 28 weeks of pregnancy, when the court reasoned a fetus could survive outside of the womb. 

Prior to that, all but a few states outlawed abortion. 

In 1992, a subsequent Supreme Court ruling, Planned Parenthood v. Casey, affirmed the 1973 decision but substituted the concept of fetal viability for the previous third trimester legal limit for state abortion prohibitions. 

After Roe was decided, medical advancements improved survival rates for newborns delivered before the full 39 weeks of pregnancy. According to the American College of Obstetricians and Gynecologists, data over the past decade indicates, with wide variation, that as many as 76% of newborns delivered at 25 weeks of pregnancy survived. At 23 weeks, only 23% to 27% survived.  

The Mississippi case before the Supreme Court, Dobbs v. Jackson Women’s Health Organization, involves a 15-week ban that was ruled unconstitutional and enjoined by lower courts. “In its initial filing, the plaintiffs in Dobbs were testing how far the Supreme Court would go to disregard the viability line,” said constitutional scholar Khiara Bridges, a professor at University of California Berkeley School of Law. 

But after conservative Justice Amy Coney Barrett was appointed in 2020, the plaintiffs’ primary brief asked the court to overturn Roe v. Wade in its entirety, she noted. 

STATELINE STORY January 28, 2022
Here’s How Abortion Access Would Change if Supreme Court Erodes Roe 

If the Supreme Court does that, 22 states are expected to ban abortion immediately after the decision given existing statutes and state constitutional provisions, according to the Guttmacher Institute, which favors abortion rights: Alabama, Arizona, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming.

Four additional states—Florida, Indiana, Montana and Nebraska—are considered likely to ban abortion in the near future given their political makeup and recent legislative activity, according to Guttmacher.

“We’re at the point where we’re seeing states move quickly to pass abortion bans because they believe the laws will actually take effect,” said Elizabeth Nash, principal policy associate at Guttmacher.

But abortion opponents insist that most state lawmakers and governors will take their time and test the waters to determine the will of their electorates before enacting new abortion restrictions. 

poll released this month from the Pew Research Center showed that 61% of Americans said abortion should be legal in all or most cases, though many were open to restrictions. (The Pew Charitable Trusts funds the center and Stateline.) Even among the 37% of respondents who said they opposed abortion, some said it should be legal in some circumstances. 

“It’s going to be a marathon, not a sprint,” said Clarke Forsythe, senior counsel at Americans United for Life, which opposes abortion. “Abortion policy in the states will be worked out over a series of years, not in a month or two months. Not before the November elections.” 

As for how far lawmakers may go to eliminate abortion access, Forsythe’s organization and several dozen other anti-abortion groups wrote in a May 12 open letter to state lawmakers that they would oppose laws such as the one proposed in Louisiana that would penalize abortion patients.

“As national and state pro-life organizations, representing tens of millions of pro-life men, women, and children across the country, let us be clear: We state unequivocally that we do not support any measure seeking to criminalize or punish women and we stand firmly opposed to include such penalties in legislation,” the letter stated. 

Fear and Uncertainty

For Oklahomans and Texans, where abortion after six weeks of pregnancy is illegal, the post-Roe era has begun. 

But for the rest of the roughly 36 million women of reproductive age living in states expected to ban abortion, future access to the clinical procedure is uncertain. 

And for people in all but 16 states and the District of Columbia where statutes protect the right to abortion, the outcome of November’s elections could create additional uncertainty. STATELINE STORY March 16, 2022As Abortion Pills Take Off, Some States Move to Curb Them 

As it stands, 13 states have so-called trigger laws on the books that would ban abortions if the high court overturns Roe v. Wade. Nine states have unconstitutional restrictions that have been blocked by courts, and a handful of other states have retained inactive pre-Roe abortion bans. In a few states, attorneys general and other state officials have said they’ll clear the way for those laws to take effect immediately. 

In other state legislative actions, Kentucky, which already has a trigger law on the books, enacted a 15-week abortion ban that was temporarily blocked by a court in April. And Idaho enacted a six-week abortion ban with a citizen enforcement provision similar to the laws in Oklahoma and Texas, which also was blocked by a court in April. Both of those laws could take effect immediately if Roe is overturned.

Two states that do not have trigger laws—Florida and Arizona—enacted 15-week bans this year. Florida’s law is slated to take effect in July, and Arizona’s 90 days after the state legislature adjourns. 

A handful of state legislatures still are considering other anti-abortion bills, and a slew of challenges to state abortion restrictions have been put on hold in lower courts pending the Supreme Court’s final ruling.

It’s a complicated legal landscape that is likely to perplex the average voter and challenge anyone seeking an abortion in the months ahead. 

The day after news of the leaked high court document broke, Dr. April Lockley, who runs a call-in medical service, the Miscarriage and Abortion Hotline, told Stateline in an email that she had received calls from frightened people asking whether abortion was still legal in their state and whether they could obtain abortion medication to keep on hand just in case. 

Heather Shumaker, director of state abortion access at the National Women’s Law Center, which advocates for abortion rights, said, “To say that we’re in an unprecedented and terrifying moment right now would be an understatement. 

“I think it’s going to be a long road ahead for many of us.”

Stateline, an initiative of The Pew Charitable Trusts.