Several states set to act on abortion
Reshaped Supreme Court could open avenues to a ban
WASHINGTON — President Donald Trump’s ability to reshape the Supreme Court with a conservative nominee could quickly send the nation back to a reality that had seemed far in the past: Abortion would be illegal in a large swath of America, subjecting doctors and perhaps pregnant women to criminal prosecution and potentially upending the political landscape in many states.
As many as 17 states are poised to effectively ban abortion should the Supreme Court overturn Roe v. Wade, the 1973 decision that guaranteed abortion rights nationwide. If the decision were overturned, each state could set its own rules on abortion.
Trump vowed in his campaign that overturning Roe “will happen, automatically,” if he were elected and could appoint justices to the court. More recently, as president, he criticized Roe for leading to “some of the most permissive abortion laws in the world.”
Four justices are widely believed to favor reversing the 45-year-old ruling or severely restricting its reach. In replacing Justice Anthony Kennedy, who on Wednesday announced his coming retirement, Trump could supply the fifth vote for a majority.
Several states with antiabortion leadership or leanings have already laid the groundwork to move fast, providing potential test cases that could get before a more conservative court within a year or two.
Iowa, for example, recently prohibited abortions after a fetal heartbeat can be detected, which often takes place around the sixth week of pregnancy, before many women know they are pregnant. The law was set to take effect on July 1, but a state judge put it on hold this month.
“States are enacting laws that say, ‘Take us to court; let this go all the way to the Supreme Court. We are confident now that it will go our way,’ ” said Carol Sanger, a law professor at Columbia University.
In 10 states, bans that existed before the Roe decision are still on the books and would take effect again should it be reversed, according to a report by the Guttmacher Institute, which tracks abortion laws.
Four states — Louisiana, Mississippi, North Dakota and South Dakota — have laws designed to ban abortion if Roe is overturned. And seven — Arkansas, Kansas, Kentucky, Louisiana, Missouri, Ohio and North Dakota — have laws that express the intention to limit abortion as much as the Supreme Court allows.
The lineup of states underscores a big difference between the situation that prevailed before Roe and what might happen if the decision were overturned: When Roe took effect, most states had banned abortion, and few allowed the procedure.
If Roe were overturned now, abortion bans would spring into effect in parts of the South and the nation’s interior. Abortions would remain legal, however, in many of the nation’s largest states, including California, which has a law expressly protecting abortion rights.
Women in conservative states who couldn’t afford to travel to places where abortion was legal would be most at risk, experts in abortion law say.
In a number of states where voters are closely divided on the issue, the emotional politics of abortion likely would lead to a new period of political turmoil, where power could shift around an issue that for decades has not been a top concern for most voters.
“If the court rolls back Roe v. Wade, abortion will become front and center of every state political debate and campaign,” said Patrick Egan, a political scientist at New York University who has studied public opinion on the issue. “The extent to which states prohibit or make it more difficult to access legal abortion could become the battleground in the politics of many states for decades to come.”
More than two-thirds of voters nationwide support keeping the Roe v. Wade ruling intact, according to a poll conducted last year by the nonpartisan Pew Research Center. Yet the politics of abortion get murky when voters are asked about specific restrictions. In several swing states, voters are closely divided, which could worsen the political tumult if the Supreme Court returns the issue to state control.
That could add a new, unpredictable degree of volatility to the politics of swing states.
After decades of legal abortion being the law of the land, voters in even the most conservative states have been known to bristle at the idea of abolishing it outright.
When lawmakers in South Dakota passed an abortion ban in 2006, voters overturned it at the ballot box soon after. Years later, voters had the opportunity to vote on an abortion ban again. And again, they rejected it. Mississippi voters rejected a constitutional amendment declaring that life begins at conception.
Some things have changed since the early 1970s. An underground market for abortion services that might emerge today would offer safer options than those available five decades ago, when many patients died in botched back-alley abortions and public hospitals set up septic abortion wards to treat survivors. There was no abortion pill then. Often the only option was a coat hanger.
But scholars of abortion law say there’s no question that the bans some states are pursuing would lead to the re-emergence of acute health and safety risks for patients.
Abortion rights advocates have made that risk a major point of their efforts to mobilize supporters.