On Tuesday, Oklahoma’s Republican Gov. Kevin Stitt signed legislation banning nearly all abortions in that state — the only exception is for abortions necessary “to save the life of a pregnant woman in a medical emergency.”
The odd thing about this new law is that Oklahoma already has a law on its books banning all abortions, except when “necessary” to preserve the life of the pregnant person undergoing the abortion. The old law has a maximum penalty of 5 years in prison, while the new law increases the maximum penalty to 10 years plus a $100,000 fine.
Two lessons can be gleaned from this effort to make Oklahoma law somewhat more anti-abortion than it already is. Both hinge on the GOP-controlled Supreme Court’s likely impending move to overturn Roe v. Wade, the landmark 1973 case that established a constitutional right to an abortion. First, nearly half the states in the country will almost immediately permit little to no access to abortion. Second, more states could quickly follow, while states with existing bans could enact even more restrictive laws.
Last December, the Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a case out of Mississippi that explicitly asks the Court to overrule Roe — and most of the Court’s six Republicans appeared quite eager to do so. Less than two weeks later, the Court handed down a decision in a case out of Texas that permits states to ban abortion completely, as long as they use a needlessly complicated mechanism to enforce the law.
So it is very likely that Roe is in its final days — a decision is expected in late June.
With that context, Oklahoma’s moves are revealing, again, of two things. One is that many states already have existing abortion bans and other restrictions that will roar into life the minute Roe is overruled.
According to the Guttmacher Institute, a pro-reproductive rights research group, and to news reports tracking recent anti-abortion legislation, 22 states already have laws on the books that either ban abortion outright or ban it very early in a pregnancy. These aren’t just the so-called “trigger laws,” which are designed to quickly take effect with minimal to no legislative effort if Roe is overturned. Oklahoma and several other states still have abortion bans from before 1973, when Roe was originally handed down, that were never repealed during the half-century in which Roe prevented them from operating. Other states have passed new abortion bans since 1973.
The reason these extant bans haven’t been enforced is that anyone charged with violating them would have won in court, because Roe forbids states from banning abortions. Without Roe, however, that would no longer be the case.
The other lesson is that, even in states that already restrict or ban abortion, we are likely to see an arms race among red-state lawmakers to enact broader and more draconian anti-abortion laws. Oklahoma’s Gov. Stitt has said that he will sign any anti-abortion bill that passes the state legislature — and it’s unlikely that he’s alone among Republican governors.
What happens immediately after Roe is overruled?
As mentioned above, 22 states reportedly have laws on the books which impose very strict restrictions on abortion. This includes 18 states that would either ban abortion outright, or ban it only with limited exceptions — such as if the person seeking an abortion could die or face “irreversible impairment of a major bodily function” if their pregnancy is not terminated.
Some, but not all, of these states also permit termination of a pregnancy that results from rape or incest. Meanwhile, some states do not even permit abortions when the person seeking the abortion will be permanently disabled, but won’t die, if they don’t receive an abortion. Oklahoma’s new law, for example, only permits an abortion “to save the life of a pregnant woman in a medical emergency.”
Again, these laws are largely dormant right now, because of Roe and subsequent Supreme Court decisions protecting a right to abortion. And some of these laws are “trigger” laws that explicitly do not take effect until Roe is overruled. But these abortion restrictions will come roaring into effect once the Supreme Court gives them the green light, most likely shutting down all abortion clinics in the states with the strictest laws.
The 18 states with near-total bans on the books are Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming.
In some cases, these bans are quite old, and predate Roe v. Wade itself. Wisconsin’s law, which makes performing an abortion a felony punishable by up to six years in prison, is more than 170 years old. It is unlikely to be repealed anytime soon, moreover, because the state’s legislature is gerrymandered to all but ensure that Republicans will control it. And the state’s GOP-controlled supreme court ruled that any new maps must use the old, gerrymandered maps as a baseline.
In other states, however, it is possible that state courts could intervene to restore abortion rights, even if the Supreme Court eliminates the federal constitutional right to terminate a pregnancy. Michigan Gov. Gretchen Whitmer (D), for example, recently asked her state’s supreme court to hold that Michiganders have a right to abortion. Democrats control a narrow majority of the seats on that court.
Michigan and Wisconsin are two of four states — the others are Arizona and West Virginia — that reportedly have a pre-Roe abortion ban on the books, but do not have a more recent law banning abortions. There could be additional litigation in all four of these states to determine whether the old law may take effect, though Republicans control the state supreme courts in Arizona, West Virginia, and Wisconsin, so those courts are likely to reinstate the old bans.
Nevertheless, this legal uncertainty might explain why Oklahoma lawmakers decided to pass a new abortion ban despite the fact that the state already had one on the books. As Elizabeth Nash, an expert on state reproductive health policy with Guttmacher, told Vox, it is “much simpler to pass a new ban” than to wait for a state supreme court to rule on the old one.
In a few cases, there will be some lag time between when the Supreme Court overrules Roe, and when the state’s abortion ban takes effect. Idaho’s near-total ban on abortions, for example, takes effect 30 days after Roe is overruled.
In any event, barring intervention by state lawmakers or state courts, nearly all abortions are likely to be illegal in 18 states by the end of this summer — and that’s assuming lawmakers in states that do not have bans on the books do not enact new ones after Roe is overruled. The number of states with near-total abortion bans could rapidly grow.
Additionally, four other states — Georgia, Iowa, Ohio, and South Carolina — have laws on the books banning abortion after the sixth week of pregnancy, according to Guttmacher. That’s before many people know they’re pregnant. (There’s also the unusual case of North Carolina, which once had an abortion ban on the books. But a more recent law appears to have legalized abortion up to the 20th week of pregnancy.)
Some states also have overlapping abortion restrictions. Idaho, for example, has a six-week ban and a “trigger” law that bans nearly all abortions a month after Roe falls. Abortion providers in states with overlapping restrictions would need to comply with all of them — which means that if one of those restrictions is an absolute ban, they would not be allowed to perform abortions.
The arms race
If Roe is overruled, the most immediate impact will be that states are free to restrict or ban abortions if they choose. That means every election that will decide control of a state legislature or governor’s mansion could swiftly become a referendum on abortion.
The Oklahoma legislature’s decision to enact stricter sentences for abortion providers, even though the state already had a law on the books making performing abortions a felony, suggests that Republican lawmakers will likely try to score points with their base by enacting more and more draconian laws.
Already this year, lawmakers in 30 states have introduced at least 82 bills banning at least some kinds of abortions. Some Republican governors have spent years touting their plans to make their state the most anti-abortion state in the nation.
It’s time to make Missouri the most Pro-Life state in the country! Thanks to leaders in the House and Senate, we are one vote away from passing one of the strongest #ProLife bills in the country – standing for life, protecting women’s health, and advocating for the unborn.
— Governor Mike Parson (@GovParsonMO) May 15, 2019
State lawmakers, moreover, aren’t the only officials who are likely to face political pressure to crack down on abortion providers. Prosecutors, especially elected prosecutors, may face pressure to bring charges against doctors who perform abortions, even those that are entirely legal under state law.
Think of a state like Oklahoma, where, in a post-Roe world, abortions will only be legal if necessary to save a patient’s life in a “medical emergency.” Prosecutors could target physicians and force them to provide evidence that a particular abortion was truly necessary to save their patient’s life.
Meanwhile, the mere threat of such prosecutions could lead to unnecessary deaths, as doctors may be unwilling to perform a medically necessary abortion and risk felony charges.
One factor that could mitigate the impact of state-level abortion bans is that more than half of abortions in the United States are medication abortions — in which the patient takes pills to induce a miscarriage rather than undergoing a surgery. States commonly ban a wide range of drugs, such as marijuana, cocaine, and heroin, but that’s hardly prevented people who want to obtain these drugs from doing so. It’s unlikely that state governments will be any more effective at eliminating access to mifepristone, a common abortion drug approved by the Food and Drug Administration.
It’s also not clear whether the Supreme Court would allow states to ban federally approved drugs, although the current Court’s hostility to abortion rights suggests that they might permit states to do so.
Which brings us to one other looming uncertainty — whether the Republican supermajority on the Supreme Court will go even further, potentially extending abortion bans to blue states.
“Fetal personhood,” and other threats to the right to receive an abortion in a blue state
The conservative position on abortion, at least among conservative Supreme Court justices, has historically been that elected lawmakers should get to decide whether to ban abortions. As Justice Antonin Scalia said in a 2012 interview, “my view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad … the Constitution does not say anything about it.”
But there is an alternative theory, known as “fetal personhood,” which would effectively ban abortions in all 50 states. The idea behind this theory is that fetus has the same legal rights as a person, so if a state prohibits killing people after they are born, it must also prohibit killing a fetus.
We don’t know whether any of the current justices will embrace fetal personhood as the next big fight over the right to an abortion. But we do know that five members of the current Court are willing to manipulate the Constitution and the law in order to achieve anti-abortion results. Hence the Court’s decision in Whole Woman’s Health v. Jackson (2021), which established that states can insulate anti-abortion laws from federal judicial review altogether, so long as they draft those laws, as Texas did, so that they can only be enforced by private bounty hunters.
Another uncertain question is whether this Supreme Court will allow anti-abortion states to target individuals who travel to states where abortion is legal in order to receive one, or to target physicians and other individuals who help red-state residents obtain abortions. A bill pending in the Missouri legislature, for example, would make it illegal “to aid or abet, or attempt to aid or abet, an abortion performed or induced on a resident or citizen of Missouri, regardless of where the abortion is or will be performed.”
This bill is unconstitutional, even in a world without Roe v. Wade. Missouri’s jurisdiction does not extend beyond its borders. And states cannot bar US citizens from traveling freely among the 50 states. As the Supreme Court said in Saenz v. Roe (1999), the Constitution “protects the right of a citizen of one State to enter and to leave another State.”
But this right, like all constitutional rights, depends on the courts for its enforcement. So in the most extreme world, a Supreme Court that is determined to limit abortions may not honor the constitutional right to travel if doing so would lead to someone terminating a pregnancy.
Finally, it is possible that, if Republicans control Congress and the White House, they will attempt to enact a nationwide ban on abortion.
If such a bill were to become law, it could scramble the Supreme Court’s ordinary coalitions. Liberal justices have historically supported an expansive role for Congress, which includes the power to regulate and even ban commercial activity such as providing abortions. The Court’s most conservative members, meanwhile, have historically sought to limit Congress’s powers — in ways that would prohibit both modern-day laws such as Obamacare, and potentially even venerable laws such as the federal ban on child labor.
In 2007, in an opinion joined only by Scalia, Justice Clarence Thomas suggested that Congress may not have the power to regulate or ban abortions. But it remains to be seen if Thomas would hold to that view if a nationwide abortion ban were on the table. It also remains to be seen whether any of Thomas’s colleagues would join him in an opinion prohibiting a federal abortion ban.
What we do know is that the end of Roe will be just the beginning of a new war over abortion rights. Much of the battle will shift to state legislatures, but Congress and the courts will remain important players. And Republicans, both in elected roles and the judiciary, will likely face considerable pressure to enact more rigid abortion bans.