Within hours after Justice Anthony M. Kennedy announced his retirement, the predictions were alternately dire or ecstatic: President Trump’s next Supreme Court pick could band with conservatives to overturn Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide.

What would happen then?

Laws would automatically ban all

or some abortions

Laws retained from pre-Roe era that

could ban all or some abortions

Laws that explicitly protect abortion

WASH.

MAINE

N.D.

WIS.

S.D.

MASS.

MICH.

CONN.

MD.

NEV.

DEL.

CALIF.

W.VA.

OKLA.

ARIZ.

ARK.

N.M.

MISS.

ALA.

LA.

HAWAII

Note: Mississippi has both types of laws

that would ban abortion

Laws would automatically ban all or some abortions

Laws retained from pre-Roe era that could ban all or some abortions

Laws that explicitly protect abortion

WASH.

MAINE

N.D.

WIS.

S.D.

MASS.

MICH.

CONN.

MD.

NEV.

DEL.

CALIF.

W.VA.

OKLA.

ARIZ.

ARK.

N.M.

MISS.

ALA.

LA.

HAWAII

Note: Mississippi has both types

of laws that would ban abortion

Laws retained from pre-Roe era that

could ban all or some abortions

Laws that explicitly protect abortion

Laws would automatically ban all

or some abortions

WASH.

MAINE

N.D.

WIS.

S.D.

MASS.

MICH.

CONN.

MD.

NEV.

DEL.

CALIF.

W.VA.

OKLA.

ARIZ.

ARK.

N.M.

MISS.

ALA.

LA.

HAWAII

Note: Mississippi has both types of laws

that would ban abortion

Regulating abortion would revert fully to state legislatures, many of which have become more conservative and have passed more than 400 laws that restrict access in the past six years alone.

There are four states where abortion would be banned as soon as Roe v. Wade were overturned; Louisiana, Mississippi and North and South Dakota enacted “trigger laws” with delayed effective dates. Ten other states still have pre-Roe abortion bans on the books that never were repealed. Eight states have laws that explicitly protect abortion rights.

Many state laws are challenged in the courts for placing an “undue burden” on women who seek abortions, the current federal standard that the Supreme Court, with Kennedy in the plurality, established in 1992. And some of those will land before the bench, where a new conservative justice may be more open to arguments that the state’s obligation to protect the health of mother and fetus outweighs a woman’s constitutional right to privacy.

The heated battle has begun even without a nominee. There are 51 Republicans in the Senate, and 51 votes are needed to confirm the president’s choice.

Republicans who might defect

Lisa Murkowski and Susan Collins voted against a Senate bill that would ban abortions after 20 weeks and have voted against other measures that would defund Planned Parenthood.

Voted to confirm Gorsuch
Voted for 20-week abortion ban

Susan Collins

R-Maine

Voted to confirm Gorsuch

Voted for 20-week abortion ban

Lisa Murkowski

R-Alaska

Voted to confirm Gorsuch

Voted for 20-week abortion ban

Democrats who might defect

Three Democratic senators voted to confirm Neil Gorsuch and could be the deciding votes if they break with the party line.

Voted to confirm Gorsuch
Voted for 20-week abortion ban

Joe Donnelly

D-Ind.

Voted to confirm Gorsuch

Voted for 20-week abortion ban

Heidi Heitkamp

D-N.D.

Voted to confirm Gorsuch

Voted for 20-week abortion ban

Joe Manchin III

D-W.Va.

Voted to confirm Gorsuch

Voted for 20-week abortion ban

Republican Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) have reiterated their support for abortion rights and shown their willingness to break with their party, particularly on defunding Planned Parenthood. And at least three Democrats facing reelection in states that Trump won may be willing to break with their party, too. The three – Sens. Joe Manchin III (W.Va.), Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.) met with the president at the White House on Thursday night and are under pressure from liberal activists and their colleagues.

“Overturning Roe” will stay the rallying cry on both sides of the issue, but the antiabortion movement’s legal strategists plan to stick to their highly successful strategy of chipping away at abortion rights in the states, they told The Post's Amy Gardner. Forty-three states have some kind of limit on abortions, and at least six are down to one provider.

And there are two laws on hold by injunction and now in U.S. appeals court — one from Alabama and one from Texas — either of which would effectively outlaw the vast majority of abortions after 14 weeks, says Elizabeth Nash, who leads research on state policy on reproductive rights for the Guttmacher Institute.

Either could reach the Supreme Court in the next 18 to 24 months.

About this story

Information from the Guttmacher Institute, Washington Post reporting.

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