How States Can Protect Roe v. Wade in the Wake of Kavanaugh

Trump promised that he would put anti-choice judges on the Supreme Court who were committed to overturning Roe v. Wade. He has delivered on his promise with the confirmation of Brett Kavanaugh, a sexual assaulter, to a lifetime appointment on the highest court in the land. Kavanaugh had already used his position on the D.C. Circuit Court to argue in favor of blocking access to abortion services, most notably in Garza v. Hargan, where he attempted to deny an undocumented teenager in the Trump administration’s custody her right to an abortion. In a speech to a far-right audience, Kavanaugh praised the dissent in Roe v. Wade, indicating he thought it was decided incorrectly.

With Kavanaugh’s ascent to the Supreme Court, the ability of millions of people to access abortion and other reproductive care is in jeopardy. We know that any attack on reproductive rights will hit lower-income women, immigrant women, women of color, and members of the LGBTQ+ community the hardest.

If the federal protections codified by Roe v. Wade are overturned or gutted, it will be up to the states to protect abortion access. In this resource, we discuss:

  • What is Roe v. Wade?

  • What states are in threat of losing abortion access if Roe v. Wade falls?

  • What can states do to protect abortion access if Roe v. Wade falls?

  • What can you do to protect abortion access in your state?

What is Roe v. Wade?

In 1973, the Supreme Court made a landmark decision (7-2) in the case of Roe v. Wade that recognized the constitutional right to abortion under the 14th Amendment’s right to privacy. The Court held that any regulations that would limit abortion must be justified by a “compelling state interest” to protect the mother’s health and protect the “potentiality of human life.” The Court struck this balance by recognizing the right to choose abortion until fetal viability (the point at which a fetus can survive outside the woman’s body), while also declaring that the state’s interest generally outweighs that of the woman’s beyond that point.

How could the Supreme Court limit abortion access?

Under a Kavanaugh court, Roe v. Wade is in grave danger. There are already many cases in the lower courts that the Supreme Court could agree to hear—and each is an opportunity for the newly anti-choice Court to overturn or gut the protections of Roe v. Wade.

Overturn Roe v. Wade

If the Supreme Court decides to fully overturn Roe, they could reverse the ruling that the 14th Amendment’s right to privacy covers abortion. A reversal of Roe punts decisions on abortion rights back to the states. However, there is another avenue for overturning Roe: Congress could pass a federal ban on abortion and the Court could uphold it, which would then pre-empt any state-level protections.

Gut the protections provided by Roe v. Wade

Without fully repealing Roe v. Wade, the Supreme Court could still gut its critical protections and decimate abortion rights. For example, they could issue a ruling that bans a widely used, safe abortion procedure; or, they could rule that states are now allowed to restrict abortion to any extent short of an outright ban. Furthermore, since the Supreme Court ruled in Planned Parenthood v. Casey that states could regulate abortion as long as it did not place an “undue burden” on a woman seeking to obtain one, a Kavanaugh court may embolden states to test the limits on what constitutes an “undue burden.” This could result in a flurry of state laws to further restrict abortion in anti-choice, often Republican-controlled, states.

What states are in threat of losing abortion rights if Roe v. Wade falls?

In a potential world without Roe, decisions about abortion access will be left to the states. In 16 states, abortion could be quickly banned due to pre-existing laws that were passed before Roe v. Wade (a so-called “trigger ban”), or due to the legislature’s expressed intent to restrict or ban abortion. In addition to those 16 states, there are an additional 12 states that could pass new legislation to restrict abortion access because their legislature is controlled by an anti-choice majority. But this can change in November if we build the #BlueWave2018 to flip control of state legislatures across the country.

Pre-Roe ban

Nine states—Alabama, Arizona, Arkansas, Michigan, Mississippi, New Mexico, Oklahoma, West Virginia, and Wisconsin— passed a ban on abortion before Roe v. Wade that could be revived quickly if Roe was overturned. In many of those states, the pre-Roe ban could be immediately enforced if the state courts had never declared the state’s abortion ban unconstitutional under Roe. In others, like Oklahoma, Rhode Island, or Utah, where state courts had blocked the pre-Roe ban, the state would have to ask the courts to revive the ban.

Trigger ban

Four states—Louisiana, Mississippi, North Dakota, South Dakota—have something known as a “trigger” ban, which is a statewide ban on abortion that the legislature has already passed, with a provision that the ban will only go into effect in the event of Roe v. Wade being overturned. In these states, an abortion ban would automatically go into effect if Roe fell.

Expressed intent to restrict abortion

Often on top of having either a pre-Roe or trigger ban, seven states—Arkansas, Kansas, Kentucky, Louisiana, Missouri, North Dakota, Ohio—have proactively expressed their intent to restrict abortion, “protect life,” or “protect the unborn child,” or have stated an explicit preference for childbirth over abortion, to the full extent allowable by the Supreme Court. Without the current protections under Roe v. Wade in place, these states could quickly pass legislation to restrict or block access to abortion.

Anti-choice state governments

The Republican party has openly declared itself to be the anti-choice party. Unfortunately, due to a decades-long strategic effort to build power at the state level, the GOP has slowly taken over the state government (both chambers of the legislature and the governorship) in 26 states. Most of these Republican trifecta states have either declared their intent to restrict abortion or already have a pre-Roe or trigger ban. Three other states—Georgia, South Carolina, Wyoming—have not taken any of the above steps, but have Republican-controlled state governments that could pass anti-choice legislation if Roe fell. Luckily, we have a chance to change that in November.

What can states do to protect abortion access if Roe v. Wade falls?

On the other side of the spectrum, several states have worked toward codifying the protections of Roe in their state’s constitution or statute, regardless of the federal government’s actions.

Freedom of Choice Act

Nine states—California, Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada, Oregon, Washington—have passed a statute that protects the right to abortion in their own state. In these states, abortion rights would be protected even if Roe v. Wade was overturned. However, these protections would not stand if a federal abortion ban was implemented (and upheld by the Supreme Court) because federal law would pre-empt state statutes.

State-level constitutional protection

Nine states—Alaska, California, Florida, Iowa, Massachusetts, MInnesota, Montana, New Jersey, New Mexico—have had their highest state court recognize that their state’s constitution protects the right to abortion. In these states, abortion may be protected if Roe fell—but only if the state supreme court resists an ideological takeover where a newly conservative court reverses that finding. Such a protection also would not stand in the event of a federal abortion ban.

States that could pass protections

Ideally, we would like all states to protect access to abortion if Roe fell. There are multiple pathways to protecting abortion access, depending on the state. For the states under threat above that have pre-Roe or trigger bans, declared intent for restricting abortion, or anti-choice legislatures, we will first need to work to change the legislative composition of the state government to create a pro-choice legislature, or sway moderate Republicans in order to pass abortion protections. We have a real chance to change the composition of state legislatures this November!

Seven other states—Colorado, Illinois, New Hampshire, New York, North Carolina, Vermont, Virginia—have no bans or declared intent, and are not Republican trifectas, yet have not yet passed statutory or constitutional protections for Roe. These states are ripe targets for codifying Roe into their state constitutions or passing a Freedom of Choice Act.

What can you do to protect Roe v. Wade in your state?

Find out the status of abortion rights in your state

Leading reproductive rights organizations have done amazing research on reproductive laws on the books in each state. Check out their resources to learn about the status of your state’s abortion laws.

Work with local pro-choice organizations

Advocacy groups like NARAL, Planned Parenthood, ACLU, National Institute for Reproductive Health, and the Center for Reproductive Rights have been fighting to protect and expand access to abortion in our communities for decades. The best thing to do is to team up with these expert advocacy groups and join their efforts to fight for abortion rights in your state!

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