What will happen at the state level if Roe is overturned?

December 3, 2021

The Supreme Court heard oral arguments this week in the case of Dobbs v. Jackson Women’s Health Organization. The case centers on an abortion restriction passed within the state of Mississippi that prohibits the procedure after 15 weeks. However, briefs and arguments before the court have focused not just on the 15-week ban, but the constitutionality of the court cases that currently govern abortion jurisprudence: Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvannia v. Casey (1992). The court could decide to uphold the Mississippi restriction, and in effect change the standard set by Roe and Casey. It could also go further and overturn both, ending almost half a century of federally sanctioned holocaust against the unborn.

Abortion access at the time Roe was decided

At the time that Roe v. Wade was decided, abortion was largely prohibited across the country. It was legalized in four states, and allowed in limited circumstances in 16 others such as rape, incest, or the life of the mother. In the remaining 30 states, abortion was outlawed without exception. For those who desired an abortion, it often required travel to a state (or country) which permitted the procedure. For example, in 1972 there were over 580,000 legal abortions in the United States. Historian Daniel Williams has shown that even with a majority of states banning abortion pre-Roe, certain states were able to provide enough hospital abortion services for hundreds of thousands of abortions. Thus, while abortion was largely illegal, it was not unthinkable.

What happens in various states if Roe is overturned?

While overturning Roe would return the question of abortion access to the states, the country is in a much different place than it was when Roe was decided. If Roe is overturned, a wide disparity would exist between different states, with some automatically protecting or prohibiting abortion access. Others would almost certainly become contested battlegrounds for control of state legislatures and the governorship so as to pass measures in either direction.  

Whereas before only four states gave women the right to seek an abortion, currently 15 states and the District of Columbia protect that access: Washington, Oregon, California, Nevada, New Mexico, Hawaii, Maine, Vermont, New York, Massachusetts, Rhode Island, Connecticut, Delaware, Maryland, and Washington, D.C. 

Another 12 would immediately ban or severely restrict abortion access: Idaho, Utah, North Dakota, South Dakota, Oklahoma, Texas, Louisiana, Missouri, Arkansas, Kentucky, Mississippi, and Tennessee. There are also a number of states that have enacted laws which are currently blocked by the federal courts, but which could be easily reinstated to restrict access: Alabama, Georgia, Iowa, Ohio, and South Carolina. There are also states that would likely move to ban or restrict abortion based on the makeup of their state legislatures: Florida, Indiana, Montana, Nebraska, and Wyoming. 

Between these opposing groups of states would be those that would become highly contested for control of the government. For example, Pennsylvania, Michigan, Wisconsin, and North Carolina have a governor who is a Democrat and state houses that are controlled by the Republicans. As the push for pro-life causes moves to the state level, these local races would become more crucial in electing pro-life supporters.

New challenges at that state level

If the Supreme Court chooses to overturn Roe, the pro-life movement will need to focus on a number of new challenges that are likely to occur at the level of state policy. First, it is likely that the limiting of abortion in one state will not stop individuals from traveling to obtain it. After Texas passed a 6-week abortion ban, the neighboring state of Oklahoma reported an increase in individuals from Texas seeking an abortion. And while overturning Roe would increase the distance that individuals would have to travel on average to over 125 miles to reach the nearest abortion provider, it would still be an option for those who have the resources and are capable of traveling. 

However, the more likely result will be an increase in the use of abortion medication. Currently, over 40% of abortions are obtained through the use of the abortion pills. With the pandemic and the loosening of restrictions on telemedicine, it has become easier to obtain the pills online and have them shipped directly to abortion-vulnerable women. Though there are some state regulations that limit the use of these pills and obtaining them through the mail, their prevalence is expected to rise because the cost of the medication is cheaper than a surgical abortion. 

Another consideration that the pro-life movement will face is elected officials who refuse to enforce bans and restrictions, especially in states with divided governments. For example, Michigan’s attorney general has stated previously that she would not enforce the state’s ban on abortion if the Supreme Court were to overturn Roe. Even if the pro-life movement is able to help pass legislation further restricting abortion, it will require government officials willing to enforce it.

Importance of state-by-state action for pro-life movement

With the shift from a national to state-level emphasis, the pro-life movement will need to adapt even as it continues doing what it has done for years. In the states where abortion is permitted, the pro-life movement will need to learn how to mobilize at the local level to pass ordinances, advocate for legislation, and help promote officials who stand for the dignity of the unborn. This will look different from state to state, and in some places it may be possible to only achieve partial measures in the short term — a ban on abortion at 20 weeks rather than a heartbeat bill — but in all it will look like advancing toward the goal where abortion is illegal and unthinkable, and every life is protected.

In those states where abortion becomes illegal, the pro-life movement should not cease to work toward making abortion unthinkable. Just because abortion is illegal does not mean that women will not face unexpected pregnancies and the difficulties that might make them consider abortion. The number one reason that people seek abortions are for economic issues, and these concerns — poverty, job insecurity, the cost of healthcare — will still exist once Roe is overturned. If Roe is overturned, Christians will have the opportunity to refute the claim by pro-abortion advocates that those in the pro-life movement only care about the baby and mother up to the point of birth. We will be able to showcase that being pro-life is a womb-to-tomb ethic, and that the church, in the name of Jesus, seeks to serve and love the most vulnerable.

Alex Ward

Alex Ward serves as Lead Researcher for the ERLC. He assists with the oversight of the Research Institute under the leadership of the Director of Research. Additionally, he serves as an Associate Editor for the organization. Alex is currently pursuing a PhD in History at the University of Mississippi studying … Read More