Source: Guttmacher Institute; Credit: Haidee Chu and Kristin Gourlay/NPR
Twenty-two states have laws that immediately ban abortions or clear the way to ban or severely restrict access to them, following the landmark Supreme Court decision Friday to Roe to Wade. That’s according to research by the Guttmacher Institute, a group that advocates abortion rights. Several other states seem likely to impose new restrictions.
The court’s decision in Dobbs v. Jackson Women’s Health effectively negates the precedent of the 1973 Supreme Court ruling Roe v. Wade, which confirmed that a woman has the right to request an abortion until the fetus can be “viable” outside the womb. It opens the way for states to enact many laws that were tied up in court, and to pass new ones.
How States Will Ban or Restrict Abortions?
State laws that prohibit or severely restrict access to abortion fall into three broad categories: 1) “trigger bans,” which prohibit abortion under most circumstances and come into effect with the fall of roe† 2 for-roe banned still on the books; and 3) more recent laws restricting abortion to early gestational age or prohibiting it almost entirely. Some states have laws in more than one of these categories.
Thirteen states have trigger bans, laws that take effect immediately, by official state certification or after a 30-day waiting period, if roe is tipped over. Once enacted, these laws would replace other laws the state may have on its books, said Elizabeth Nash, a state policy analyst with the Guttmacher Institute.
“The trigger ban is in effect throughout pregnancy,” Nash says. “It has no gestational age [restriction]†
Five other states that don’t have trigger laws do have pre-roe laws prohibiting abortion that can now be enforced, subject to state legislative action or judicial enforcement. (Arizona’s pre-roe Prohibition has been on the books since before it became a state.)
Numerous states have passed laws prohibiting abortions after early gestational age, although most of those states have bans exceeding them. However, between states without trigger laws, four have six-week bans that can go into effect, assuming legal proceedings against them are dropped.
According to the impartial Kaiser Family Foundation, 16 states and the District of Columbia currently have laws protecting the right to abortion, usually before the fetus is viable.
How Fast Trigger Laws Can Be Enacted
Trigger laws in three states — Kentucky, Louisiana and South Dakota — will take effect immediately, Guttmacher’s Nash said in an interview with NPR last month. All three outright forbid abortion, except in cases where the mother’s life is in danger.
In three other states, abortion bans come into effect automatically in 30 days. Those states are Idaho, Tennessee, and Texas. (In Texas, abortion services have already been cooled by a state law that allows individuals to sue abortion providers.)
The remaining seven states require some sort of certification process. That means a state official — such as a governor, attorney general, or legislative officer — must certify or approve the trigger law before it can go into effect. Those states are Arkansas, Mississippi, Missouri, North Dakota, Oklahoma, Utah, and Wyoming. (Last month, Oklahoma also passed the nation’s strictest abortion law, which is comparable to but even stricter than Texas.)
Enforcement of pre-Roe abortion bans
Some states have laws that already existed roe rule and have remained on the books ever since, not enforced. Whether those laws go into effect may depend on current political affiliations in those places, said Nash of the Guttmacher Institute.
In states like Michigan and Wisconsin, pre-roe abortion bans are still technically part of state law. But the Democrats who hold the offices of governors and attorneys general may not be interested in enforcing them, she said.
In other states, such as West Virginia and Arizona, Republicans are more likely to push for enforcement or ask a court to enact previously challenged laws.
“I want to emphasize that this would happen pretty quickly. We’re not talking months and years. We’re really talking days and weeks,” Nash said.
How to limit abortion bans for early pregnancy abortions?
A ban on abortion after six or eight weeks’ gestation severely restricts patients’ access to abortion by reducing the abortion time to a few weeks. The bans enacted in several states were all held in court except in Texas, but could now come into effect pending legal action.
The onset of a pregnancy is measured as the first day of a woman’s menstrual cycle. Pregnancy can occur during ovulation or within two weeks of the first day of the menstrual cycle. Detecting a pregnancy is possible within about four weeks from the first day of menstruation. This means that in states that prohibit abortion after six weeks, a pregnant woman who decides to have an abortion typically has about two weeks to get one in that state.
Additional reporting by Sarah McCammon of NPR.