If a reshaped Supreme Court tosses abortion decisions back to states, several would move fast to outlaw the procedures
President Trump’s ability to reshape the Supreme Court with a conservative nominee could quickly send the nation back to a reality that had seemed far in the past: Abortion would be illegal in a large swath of America, subjecting doctors and perhaps pregnant women to criminal prosecution and potentially upending the political landscape in many states.
As many as 17 states are poised to effectively ban abortion should the Supreme Court overturn Roe vs. Wade, the 1973 decision that guaranteed abortion rights nationwide. If the decision were overturned, each state could set its own rules on abortion.
Trump vowed in his campaign that overturning Roe “will happen, automatically,” if he were elected and could appoint justices to the court. More recently, as president, he criticized Roe for leading to “some of the most permissive abortion laws in the world.”
Four justices are widely believed to favor reversing the 45-year-old ruling or severely restricting its reach. In replacing Justice Anthony M. Kennedy, who on Wednesday announced his retirement, Trump could supply the fifth vote for a majority.
Several antiabortion states have already laid the groundwork to move fast, providing potential test cases that could get before a more conservative court within a year or two.
Iowa, for example, recently passed a law that prohibits abortions after a fetal heartbeat can be detected, which often takes place around the sixth week of pregnancy, before many women know they are pregnant. The law was set to take effect on July 1, but a state judge put it on hold earlier this month.
“States are enacting laws that say, ‘Take us to court; let this go all the way to the Supreme Court. We are confident now that it will go our way,’” said Carol Sanger, a law professor at Columbia University and author of a book on the history of abortion.
“Even if they don’t strike down Roe, whittling it down is very effective. States can find new restrictions that make women pay financially, and also emotionally, by making them feel they are doing something shameful.”
In 10 states, bans that existed before the Roe decision are still on the books and would take effect again should it be reversed, according to a report by the Guttmacher Institute, which tracks abortion laws. A few of those are blue states, including Massachusetts, which would presumably scrap their bans. Several, however — including Alabama, Arkansas, Mississippi, Oklahoma and West Virginia — are solidly conservative places where antiabortion sentiment is strong.
Four states — Louisiana, Mississippi and North and South Dakota — have laws designed to ban abortion if Roe is overturned. And seven — Arkansas, Kansas, Kentucky, Louisiana, Missouri, Ohio and North Dakota — have laws that express the intention to limit abortion as much as the Supreme Court allows.
The lineup of states underscores a big difference between the situation that prevailed before Roe and what might happen if the decision were overturned: When Roe took effect, most states had banned abortion, and few allowed the procedure.
If Roe were overturned now, abortion bans would spring into effect in parts of the South and the nation’s interior. Abortions would remain legal, however, in many of the nation’s largest states, including California, which has a law expressly protecting abortion rights.
Women in conservative states who couldn’t afford to travel to places where abortion was legal would be most at risk, experts in abortion law say.
In a number of states where voters are closely divided on the issue, the emotional politics of abortion likely would lead to a new period of political turmoil, where power could shift around an issue that for decades has not been a top concern for most voters.
“If the court rolls back Roe vs. Wade, abortion will become front and center of every state political debate and campaign,” said Patrick Egan, a political scientist at New York University who has studied public opinion on the issue. “The extent to which states prohibit or make it more difficult to access legal abortion could become the battleground in the politics of many states for decades to come.”
More than two-thirds of voters nationwide support keeping the Roe vs. Wade ruling intact, according to a poll conducted last year by the nonpartisan Pew Research Center. Yet the politics of abortion get murky when voters are asked about specific restrictions. In several swing states, voters are closely divided, which could worsen the political tumult if the Supreme Court returns the issue to state control.
That could add a new, unpredictable degree of volatility to the politics of swing states.
After decades of legal abortion being the law of the land, voters in even the most conservative states have been known to bristle at the idea of abolishing it outright.
When lawmakers in South Dakota passed an abortion ban in 2006, voters overturned it at the ballot soon after. A couple of years later, voters had the opportunity to vote on an abortion ban again. And again, they rejected it. Mississippi voters rejected a constitutional amendment declaring life begins at conception.
“These were surprising results,” said Gerald Rosenberg, a professor of political science and law at the University of Chicago. “We know in the short run a lot of states would move to ban abortion. But we don’t know what would happen in the long run.”
Among the unknowns is the public’s appetite for punitive measures, even in staunchly antiabortion states. That could quickly be tested if bans that are already on the books take effect, said Leslie Reagan, a history professor at University of Illinois at Urbana-Champaign. Under several state laws, doctors who provide abortions illegally would risk prison sentences, as could the patients who seek them.
“Police used to go into the hospitals and emergency rooms trying to find evidence,” said Reagan, author of the book “When Abortion Was a Crime.” “They would stake out clinics and round up women as they left.… Women would be threatened, interrogated and brought into court as witnesses against their providers.”
Even patients who weren’t seeking abortion, but had gone to the hospital after suffering a miscarriage, would often find themselves under suspicion. “It creates this whole atmosphere of suspicion of pregnant women in general, but any woman who loses a pregnancy before delivery,” she said.
Some things have changed since the early 1970s. A black market for abortion services that might emerge today would offer safer options than those available five decades ago, when many patients died in botched back-alley abortions and public hospitals set up septic abortion wards to treat survivors. There was no abortion pill then. Often the only option was a coat hanger.
But scholars of abortion law say there’s no question that the bans some states are pursuing would lead to the re-emergence of acute health and safety risks for patients.
Abortion rights advocates have made that risk a major point of their efforts to mobilize supporters.
“We are declaring a national emergency,” Ilyse Hogue, president of NARAL Pro Choice America, said Thursday in a call with reporters. “This is not a drill. The lawsuits necessary to overturn Roe and criminalize abortion and some form of contraception are already moving through the courts.”
Even if a reshaped court were to balk at fully overturning Roe, it could still empower states to severely restrict the availability of abortion services.
The upcoming midterm election, meanwhile, may signal which side can more effectively galvanize its supporters around the issue of abortion. Even as antiabortion groups are motivated by the prospect of a long-sought victory being within reach, the alarm felt by voters who support abortion rights — many of whom have taken legal abortion for granted for decades — could translate into a potent political force.
“Our folks viscerally get it,” Hogue said. “We cannot keep up with the calls that are pouring in. We are ready to fight this fight.”
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