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Will Overruling Roe Make Abortion Illegal?

Executive Summary
January, 2007

Part 1: Executive Summary
Part 2: Quick Reference Table
Part 3: National Map
Summary PDF: (Summary, Table, and Map)
Legal Analysis PDF: (Legal Status After Roe, 70 pp.)


What would the legal status of abortion be in the States if the Supreme Court were to overrule Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992)? There is a widespread popular belief that such a decision would make abortion illegal throughout the United States, or that an overruling decision would return the country to the state of law that existed when Roe and Doe were decided on January 22, 1973. There is no basis in fact for either belief. In fact, only seven States have clearly enforceable laws which would ban most abortions after the Supreme Court restores the States' authority in this area.

More than two-thirds of the States have repealed their pre-Roe laws or have amended those laws to conform to Roe v. Wade and Doe v. Bolton, which allow abortion for any reason before viability and for virtually any reason after viability (no reviewing court has ever upheld a law restricting post-viability abortions). Only four States have enacted post-Roe laws purporting to prohibit some or most abortions throughout pregnancy. The laws in two of these States - Rhode Island and Utah - have been declared unconstitutional by the federal courts and cannot now be enforced. The other two States - Louisiana and South Dakota - have enacted trigger statutes that would go into effect once the States' authority to prohibit abortions has been restored, either by a decision of the Supreme Court or a constitutional amendment. The Louisiana, Rhode Island and South Dakota laws would effectively prohibit most abortions upon the overruling of Roe and Doe; the legislative history of the Utah law suggests that abortions could be performed for reasons relating to the mental health of the pregnant woman. Based upon the experience of States before Roe, mental health exceptions are subject to abuse.

Of the slightly less than one-third of the States that have not repealed their pre-Roe laws, most would be ineffective in prohibiting most abortions, either because the laws, by their express terms or as interpreted by courts, allow abortion on demand, for a broad range of reasons, including mental health, or for undefined reasons of health, and/or because of state constitutional limitations. In other States, the pre-Roe laws prohibiting abortion may have been repealed by implication with the enactment of comprehensive post-Roe laws regulating abortion. Only three States that have not repealed their pre-Roe laws would prohibit most abortions throughout pregnancy- Michigan, Oklahoma and Wisconsin. In addition, an unrepealed provision of the pre-Roe Arkansas law probably would prohibit all abortions.

In sum, only seven States- Louisiana, Michigan, Oklahoma, Rhode Island, South Dakota, Wisconsin and probably Arkansas - have laws that clearly would be enforceable and which would prohibit most abortions in the event Roe, Doe and Casey are overruled. An additional four States (Arizona, Texas, Utah & West Virginia) might be able to prohibit most abortions depending on the interpretation of state court rulings (and how Utah's " grave harm" is defined). The seven States account for less than 10% of the total population in the United States. In the other forty-three States (and the District of Columbia), which account for more than 90% of the population, abortion would be legal for most or all reasons throughout pregnancy.


 

 

 
 
© 2005 Life Legal Defense Fund. All rights reserved.
May be reprinted without permission but with attribution to the Life Legal Defense Fund.