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 eight 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More than two-thirds of the States have repealed their pre-Roe laws or have amended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 five 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 three States - Louisiana, North Dakota 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, North Dakota, 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Of the slightly less than one-third of the States that have not repealed their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been repealed by implication with the enactment of comprehensive post-Roe laws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 eight States- Louisiana, Michigan, North Dakota, 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 eight States account for less
than 10% of the total population in the United States. In the other
forty-two 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.
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