Antiabortion protesters wait outside the Supreme Court on June 29 for a decision on a case regarding a Louisiana abortion law. (Patrick Semansky/AP)
States have created hundreds of laws in the past several years that could restrict or even eliminate abortion access. Monday’s Supreme Court affirmation of abortion reset the prospects for dozens of those laws.
Many of the laws were created to give the current Supreme Court a chance to overturn the court’s 1973 ruling in Roe v. Wade, which deemed abortion a constitutional right. President Trump increased the chance of change with his appointments of Neil M. Gorsuch and Brett M. Kavanaugh, creating what many considered a 5-4 conservative majority on the court.
The swing vote in the latest ruling, which struck down a Louisiana law that would have closed clinics, was Chief Justice John Roberts. It was truly a swing. He cast his vote to sustain a precedent, but he had stood against the ruling that set the precedent four years ago.
[How often does the Supreme Court overturn precedents like Roe v. Wade?]
Roberts’s move makes it more unlikely that hundreds of other abortion restrictions will succeed in court.
Pre-viability bans
The Roe ruling deemed abortion legal up until the point when a fetus is potentially viable, or old enough to possibly survive outside the womb. This is roughly four months from conception. Fourteen states have passed early-term bans on abortion, some as early as six weeks. Three have banned it altogether. Those pre-viability bans have all been stayed by courts for violating the Roe constitutional standard, or are not enforced for the same reason.
The below map shows states that have tried to ban abortion earlier than what the Roe v. Wade standard dictates. As such, they have been ruled unenforceable, but that would change if Roe were overturned.
14 states have pre-viability bans
ND
ID
IA
OH
UT
MO
KY
TN
AZ
AR
GA
MS
AL
LA
ND
ID
IA
OH
UT
MO
KY
TN
AZ
AR
GA
MS
AL
LA
N.D.
Idaho
Iowa
Ohio
Utah
Mo.
Ky.
Tenn.
Ariz.
Ark.
Miss.
Ga.
Ala.
La.
The bans clearly violating Roe are seen as a chance to overturn the ruling altogether, something that Justice Clarence Thomas has advocated repeatedly, including in Monday’s ruling. The latest ruling on June Medical Services v. Russo, the Louisiana law, did not deal with a ban, so the justices did not address bans directly.
The most significant impact on the bans is likely to be Roberts’s vote to uphold precedent. He even said a four-year-old precedent set in the case Whole Woman’s Health v. Hellerstedt had been decided incorrectly but said it should stand, along with the court’s 1992 reconsideration of Roe on which it was based.
[The widening gap in abortion laws in this country]
Upholding the precedents from 2016 and 1992 makes it seem less likely that Roberts will overturn the 1973 case on which they rely. If he maintains the commitment to precedent, the pre-viability bans have little chance of success. Some opponents of abortion have argued that outlawing abortion or banning it early in pregnancy are not likely to lead the court to overturn Roe.
Restrictions on methods
Some states have banned procedures that are used later in pregnancy, such as “partial birth” abortion. Many of those bans have been suspended by the court because they do not have an exception to protect the health or life of the mother. The Supreme Court upheld a federal partial-birth abortion ban in 2007.
The states highlighted below have banned late-term abortion procedures such as partial-birth abortion, but some of the laws have been suspended because of a lack of protection for the mother’s health or life.
33 states have bans on certain procedures
MT
ND
NH
WI
ID
SD
MI
RI
IA
NE
OH
NJ
UT
IN
WV
VA
KS
MO
KY
NC
TN
AZ
OK
NM
AR
SC
GA
MS
AL
TX
LA
AK
FL
MT
ND
NH
WI
ID
SD
MI
RI
IA
NE
OH
NJ
UT
IN
WV
VA
KS
MO
KY
NC
TN
AZ
OK
NM
AR
SC
GA
MS
AL
TX
LA
AK
FL
Mont.
N.D.
N.H.
Wis.
Idaho
S.D.
Mich.
R.I.
Iowa
N.J.
Neb.
Ohio
Utah
Ind.
W.Va.
Va.
Kan.
Mo.
Ky.
N.C.
Tenn.
Ariz.
Okla.
Ark.
N.M.
S.C.
Miss.
Ga.
Ala.
La.
Tex.
Alaska
Fla.
Roberts voted in favor of the partial-birth ban despite a 2000 Supreme Court ruling against a very similar Nebraska law. A few states have expanded restrictions on methods to target procedures used earlier in pregnancy. In the future, these types of laws may receive support from Kavanaugh, Gorsuch and Roberts, along with Thomas and Samuel A. Alito Jr.
Selective abortion
Some relatively new laws have limited abortion that is considered “selective," banning abortion sought because of the sex or race or medical condition of the fetus. In June, Tennessee prohibited abortion based on the sex or race of the fetus or any medical diagnosis. These laws have not been as common as other types of restrictions but may become more widespread in other states that restrict abortion tightly.
[Abortion restrictions are costing states millions of dollars — in fees for the other side]
The below map shows states that have these types of restrictions. Some of these have been suspended by courts.
16 states have limited abortions deemed “selective”
ND
SD
PA
OH
UT
IN
KS
KY
MO
NC
TN
AZ
OK
AR
MS
LA
ND
SD
PA
OH
UT
IN
KS
MO
KY
NC
TN
AZ
OK
AR
MS
LA
N.D.
S.D.
Pa.
Ohio
Utah
Ind.
Kan.
Mo.
Ky.
N.C.
Tenn.
Ariz.
Okla.
Ark.
Miss.
La.
An Indiana law addressing selective abortion signed in 2016 by then-Gov. Mike Pence (R) was overturned by a federal appeals court two years ago. The state asked the Supreme Court to take the case, but the court declined to hear the appeal last year. It said there was no issue to resolve because the question has only been heard in one appellate region so there was no dispute at the Circuit Court level.
Abortion rights supporters have contested the laws about selective abortion in other states, so the Supreme Court is likely to have a chance to address this issue in the future.
10 states have passed all three types of restrictions
ND
OH
UT
MO
KY
TN
AZ
AR
MS
LA
ND
OH
UT
MO
KY
TN
AZ
AR
MS
LA
N.D.
Ohio
Utah
Mo.
Ky.
Tenn.
Ariz.
Ark.
Miss.
La.
Many other abortion laws pertain to restrictions on when and where procedures can be done. The 1992 Planned Parenthood v. Casey case said states could set rules but could not create “an undue burden” on a woman’s right to abortion. Monday’s case addressed those kinds of restrictions, and many similar cases are being litigated.
Sources: Guttmacher Institute information on bans and restrictions of methods. Center for Reproductive Rights information on bans, selective abortion laws and methods.
