Abortion rights advocates are warning that dozens of states, particularly in the South and Midwest, are likely to enact severe restrictions and even outright bans on the procedure if the Supreme Court were to overturn Roe v. Wade.
The warning follows the court’s announcement Monday that it will review a Mississippi law that takes aim at the constitutional right to abortion first established in the court’s landmark 1973 decision.
If the justices were to sharply undercut Roe next term, advocates say, it would have a cascading effect at the state level, where anti-abortion activists have been carefully preparing for just such a contingency amid the Supreme Court’s conservative shift over recent years.
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“The court cannot uphold this law in Mississippi without overturning Roe’s core holding,” said Nancy Northup, president of the Center for Reproductive Rights. “The stakes here are extraordinarily high.”
The Mississippi law at issue bans abortions after 15 weeks, with only narrow exceptions. Supreme Court precedent prohibits states from banning abortion before fetal viability, which occurs around 24 weeks.
The Mississippi restriction, passed in 2018, is just one of hundreds of abortion measure state legislatures passed in recent years, many with the explicit goal of overturning Roe v. Wade. In 2021 alone, lawmakers in 46 states introduced more than 500 abortion restrictions, according to the Guttmacher Institute. Of those, more than 60 measures have been enacted.
Carol Sanger, a law professor at Columbia University, said states hostile to abortion have sought to get ahead in the contest to weaken the legal protections, as if telling courts: “Pick me, pick me.”
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“What we have here is all these states trying to enact something really unconstitutional,” she said, “to be the state that gets to carry the banner of anti-abortion into abortion jurisprudence.”
In a 2019 study entitled, “What If Roe Fell?” the Center for Reproductive Rights looked abortion rights in all 50 states, the District of Columbia and several U.S. territories. The group analyzed what state-level measures would be in place — either to further insulate or pare back abortion protections — in the event that Roe were weakened or overturned, and rated jurisdictions along a continuum from “Expanded Access” to “Hostile.”
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The analysis found that abortion would remain legal in 21 states while 24 states and three territories would likely move to impose some form of ban. In the remaining five states, abortion would remain “accessible but vulnerable.”
“Eleven states have trigger bans in place,” Northup added. “That means laws that say if the Supreme Court weakened or reversed Roe that, automatically, they would have abortion be made a crime in their states.”
When the justices on Monday granted review of the Mississippi law, they took up the key question of whether all bans on pre-viability abortions are unconstitutional. Mississippi has defended its 15-week ban on the claim that fetuses are capable of sensing pain around this time.
Anti-abortion groups, which have sought to undermine Roe since it was decided nearly five decades ago, hailed the court’s move. Susan B. Anthony List (SBA List) said the case was a chance for the justices to give states more latitude to protect the unborn.
“Across the nation, state lawmakers acting on the will of the people have introduced 536 pro-life bills aimed at humanizing our laws and challenging the radical status quo imposed by Roe,” SBA List president Marjorie Dannenfelser said in a statement. “It is time for the Supreme Court to catch up to scientific reality and the resulting consensus of the American people as expressed in elections and policy.”
Abortion opponents will face a far more sympathetic bench than even just one year ago. Last term, a bare 5-4 majority voted to block a Louisiana abortion limit, with Chief Justice John Roberts casting the deciding vote alongside Justice Ruth Bader GinsburgRuth Bader GinsburgAre the Supreme Court and Biden ready to rumble over Roe? Overnight Health Care: Supreme Court takes case that could diminish Roe v. Wade | White House to send US-authorized vaccines overseas for first time White House: Biden committed to codifying Roe v. Wade regardless of Miss. case MORE and the court’s three other liberal justices.
But former President TrumpDonald TrumpNew York prosecutors investigating Trump Organization in a ‘criminal capacity’ Firm behind Arizona audit says no data was destroyed, contradicting GOP allegations Trump calls for Jan. 6 commission debate to end ‘immediately’ MORE‘s replacement of the late Ginsburg, a liberal stalwart, with Justice Amy Coney BarrettAmy Coney BarrettAre the Supreme Court and Biden ready to rumble over Roe? The Hill’s Morning Report – Presented by Facebook – Biden wants Congress to pass abortion bill, pushes for Mideast cease-fire Overnight Health Care: Supreme Court takes case that could diminish Roe v. Wade | White House to send US-authorized vaccines overseas for first time MORE, cemented a 6-3 conservative court and threw the fate of longstanding federal abortion protections into question.
Mississippi’s appeal comes after losing two rounds in the lower courts. In 2019, the U.S. Court of Appeals for the 5th Circuit held that the state’s restriction was an unconstitutional ban on a woman’s right to terminate an unwanted pregnancy before viability.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability,” reads the opinion of a three-judge panel. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions.”
But many court watchers believe that the once-unbroken line of cases will be disrupted next term.
Geoffrey Stone, a professor at the University of Chicago Law School, said he expects a majority of the justices will vote to uphold the Mississippi law.
“I think the only reason they would have taken the case is because they want to cut back substantially on Roe,” he said. “And this is a case that gives them another opportunity to do so.”
Asked if he thinks such a decision would embolden states to pass similarly restrictive measures as Mississippi’s, he replied: “One hundred percent.”
“It’s an anti-abortion case,” Stone said. “If they know they can pass this law and have it be effective, they would definitely do that.”
The case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, is expected to be argued in the fall, with a decision likely in May or June 2022.