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The state legislative battles that could change abortion law after Roe

Abortion rights advocates protest in New York recently. (Mike Segar/Reuters)
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One thing that becomes immediately obvious with the possible fall of Roe v. Wade is that the future of abortion in America will probably be decided by the states.

Abortion could be illegal or very difficult to obtain in about half of states, affecting a majority of women of childbearing age. Some states may move to protect abortion access; others may leave their status quo in place.

But conservatives have the upper hand in all this: Republicans control 62 percent of legislative chambers, compared to Democrats’ 38 percent, according to the National Conference of State Legislatures.

This November, seats in almost every state legislature are up for election. That has Democrats hoping they can harness the abortion issue to unseat at least some Republican lawmakers and potentially change abortion law in a handful of states.

“The landscape for abortion rights is about to change dramatically … state legislatures are at the center of that fight,” said Jessica Post, president of the Democrats’ campaign committee for state legislatures, in a recent briefing with reporters.

Here are the states where the battle over state legislative control could make a difference in the battle over abortion access. As you’ll see, Democrats and abortion rights supporters are mostly on the defensive.

Could Democrats win back power in any states with trigger laws?

It’s not likely. Trigger laws are some of the most antiabortion laws on the books; years or sometimes decades ago, lawmakers in 13 states passed laws that would automatically limit or ban abortion as soon as the Supreme Court overturned abortion protections. All these states are solidly Republican at the state legislative level — states like Texas, Utah, Wyoming and Louisiana.

Even if a state like Texas turns more purple politically, it will be a while before that change filters into state legislatures. Gerrymandering by Republicans this year in state legislative districts in Texas will make it difficult to impossible for Democrats to win enough seats to change abortion law.

What it's like to have a baby in the states most likely to ban abortion

The one state where Democrats could really make a difference: Michigan

Michigan is one of the 26 states that has a restrictive abortion law that will take effect if Roe falls. (Michigan doesn’t have a trigger law, but the state made abortion a felony in the 1930s, and that law is still on the books.) State Democrats have a chance to regain power there in November and repeal it.

Democrats are trying to retake the majority in both legislative chambers in Michigan, and they say that is in reach in a good election year. They’re also trying to reelect Gov. Gretchen Whitmer (D). With control of the legislative and executive branch, the party could have the power to rewrite abortion law.

But given President Biden’s approval ratings and voters’ pessimism about inflation, Democrats are on the defensive in more state legislative chambers than not, said Lou Jacobson, a nonpartisan state election analyst.

Democrats say they’re hoping to eat into Republican majorities in two more states with restrictive abortion laws set to go into effect — Georgia and Arizona — but they acknowledge they would need a really, really good election to flip any chambers in those states.

“We’re heading into an uncertain political environment, and we’re clear-eyed about the tough fight ahead,” Post, of the Democrats’ campaign committee for state legislatures, said.

Democrats are mostly on the defensive to keep states open to abortion rights

Democrats are looking to maintain majorities in swing states like Colorado, Maine, Minnesota, Nevada and New Mexico. These states all have broad access to abortion right now, according to a Washington Post analysis.

Democrats are also hoping to protect Democratic governors in states like Wisconsin and Michigan who are up for reelection where Republicans hold strong majorities in state legislatures, and even more so after redistricting. But these Democratic governors have veto power over Republican bills.

Number of abortions in the U.S. in 2017, by whether they would be protected or restricted if the Supreme Court were to strike down Roe v. Wade

“Trigger” laws

13 states, 102K abortions

Other restrictions*

14 states, 235.9K abortions

Broad access

23 states + D.C., 524.5K abortions

Tex.

Fla.

N.C.

Ohio

AZ

55.4K

71.0K

29.5K

20.6K

IN

AL

Tenn.

Mich.

SC

12.1K

KS

26.6K

Ga.

KY

MS

36.3K

IA

LA

WI

UT

Calif.

Ill.

Md.

132.7K

42.1K

29.8K

Pa.

Mass.

31.3K

18.6K

N.Y.

N.J.

WA

VA

MN

NV

105.4K

48.1K

OR

DC

CO

CT

*Includes states with near-total abortion bans, six-week bans, 15-week bans and bans passed before Roe took effect

Source: Guttmacher Institute, Post research

Number of abortions in the U.S. in 2017, by whether they would be protected or restricted if the Supreme Court were to strike down Roe v. Wade

“Trigger” laws

13 states, 102K abortions

Other restrictions*

14 states, 235.9K abortions

Broad access for now

23 states + D.C., 524.5K abortions

Tex.

Fla.

N.C.

Ohio

AZ

55.4K

71.0K

29.5K

20.6K

IN

AL

Mich.

Tenn.

SC

26.6K

KS

12.1K

Ga.

KY

MS

36.3K

LA

IA

WI

UT

Calif.

Ill.

Md.

132.7K

42.1K

29.8K

Pa.

Mass.

31.3K

18.6K

N.Y.

N.J.

Wash.

Va.

MN

NV

105.4K

48.1K

17.7K

17.2K

OR

NH

DC

HI

Colo.

Conn.

ME

NM

RI

12.4K

11.9K

VT

DE

*Includes states with near-total abortion bans, six-week bans, 15-week bans and bans passed before Roe took effect

Source: Guttmacher Institute, Post research

Number of abortions in the U.S. in 2017, by whether they would be protected or restricted if the Supreme Court were to strike down Roe v. Wade

“Trigger” laws immediately

ban most abortions

Broad access to abortion for now

23 states and D.C., 524.5K abortions

13 states, 102K abortions

Tex.

Tenn.

OK

MO

Calif.

Ill.

Pa.

55.4K abortions

12.1K

132.7K

42.1K

31.3K

AR

KY

MS

La.

9.9K

UT

Other restrictive laws to take effect*

14 states, 235.9K abortions

Md.

Mass.

29.8K

18.6K

Fla.

N.C.

Mich.

71.0K

29.5K

26.6K

N.Y.

N.J.

105.4K

48.1K

Wash.

Minn.

17.7K

10.7K

Nev.

Ore.

Ohio

Ind.

Kan.

9.7K

9.6K

Va.

20.6K

7.7K

6.8K

17.2K

Wis.

D.C.

HI

6.4K

Ga.

Colo.

Conn.

5.6K

36.3K

Ala.

IA

NH

12.4K

11.9K

6.1K

Ariz.

NM

DE

12.4K

NE

S.C.

RI

MT

5.1K

WV

*Includes states with near-total abortion bans, six-week bans, 15-week bans and bans passed before Roe took effect

Source: Guttmacher Institute, Post research

Number of abortions in the U.S. in 2017, by whether they would be protected or restricted if the Supreme Court were to strike down Roe v. Wade

“Trigger” laws immediately ban most abortions

Broad access to abortion for now

13 states, 102K abortions

23 states and D.C., 524.5K abortions

Calif.

Ill.

Pa.

Tex.

Tenn.

OK

MO

132.7K

42.1K

31.3K

55.4K abortions

12.1K

AR

MS

KY

La.

ID

ND

UT

9.9K

SD

WY

Other restrictive laws set to take effect*

14 states, 235.9K abortions

Md.

Mass.

Fla.

N.C.

Mich.

29.8K

18.6K

71.0K

29.5K

26.6K

N.Y.

N.J.

105.4K

48.1K

Wash.

Minn.

17.7K

10.7K

Nev.

Ore.

Ohio

Ind.

Kan.

9.7K

9.6K

Va.

20.6K

7.7K

6.8K

17.2K

Wis.

HI

D.C.

6.4K

Ga.

Colo.

Conn.

5.6K

36.3K

NH

ME

Ala.

IA

12.4K

11.9K

Ariz.

NM

6.1K

DE

VT

12.4K

NE

S.C.

RI

MT

AK

5.1K

WV

*Includes states with near-total abortion bans, six-week bans, 15-week bans and bans passed before Roe took effect

Source: Guttmacher Institute, Post research

Democrats have some hope the likely end of Roe could help boost voter enthusiasm.

Last week, a day after news of the Supreme Court’s potential decision on abortion, Democrats won a special election in Michigan in a state legislative district that had voted heavily for Donald Trump in 2020. Post said her organization is seeing enthusiasm they hadn’t seen since the Trump administration. She said the day after news that Roe might fall this summer, they had their best fundraising day of the year.

But Democrats have been in such a deficit of state legislative control over the past decade that it seems their best-case scenario this year is to protect the status quo in states that already protect abortion rights and perhaps change abortion law in one or two others.

correction

This post originally stated a North Carolina governor's race is happening in 2022. It's in 2024.

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