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Friday, October 07, 2022

Change in many states won’t be visible overnight if Supreme Court reverses Roe v. Wade

With individual states and some cities taking legal steps to limit or allow abortions, a fierce national battle is likely to erupt if the US Supreme Court overturns the constitutional right to abortion.

The Supreme Court is set to issue a final ruling on Dobbs v. Jackson Women’s Health Organization soon, a month after a leaked Supreme Court majority opinion showed it could overturn Roe v. Wade.

But a decision – likely to come in June or July 2022 – would be only a significant step in the ongoing national abortion saga. While 13 states, including Arkansas, Missouri and Oklahoma, have “trigger laws” that are in place in Roe v. Wade, the legal future of abortion remains uncertain in 10 states.

As a professor of health law, public health law and medical ethics, I think it is important to understand that it can take time to see the full effects of a Supreme Court decision at the state level.

Laws governing abortion are already in place in many states, while other states are moving to increase or prohibit abortions. For example, Oklahoma approved a new law on May 26, 2022 that bans most abortions after a fetal heartbeat is detected—usually about six weeks after conception. The only exceptions are cases of reported rape or incest, or the need to save the life of a pregnant woman.

In Austin, Texas, lawmakers are working to pass a law that would make abortion illegal within city limits. Towns in Nebraska and elsewhere have also approved local rules banning abortions. While state laws can override these rules, local ordinances may still limit where abortion clinics can operate.

It is important to note, however, that the legal process at the state level can involve not only the legislature, but also the courts and state governors, which creates a complex and sometimes unpredictable outcome that can take months or years to resolve. .

what’s at stake

The Supreme Court is currently reviewing Dobbs v. Jackson Women’s Health Organization, a case involving a Mississippi law called the Mississippi Gestational Age Act. This 2018 law prohibits most abortions after 15 weeks of pregnancy, with medical emergencies or fetal anomaly as exceptions.

Wade in 1973, establishing that women have the right to an abortion before a fetus can survive outside its mother’s womb—usually around 24 weeks of pregnancy. After this time, states can choose to prohibit abortion—as long as there are exceptions to preserve the life or health of the pregnant woman.

state-by-state decisions

Now, if the Supreme Court ruled in favor of the Mississippi law and Roe v. Wade, the state would gain the power to regulate abortion.

This will result in a new patchwork of state laws across the US that will take time to be approved and implemented.

For example, state legislatures may review older state abortion laws that predate Roe v. Wade. State Supreme Courts can also review existing or new laws on abortion.

There is already a widening gap between states on this issue. In 2018, several states began passing new laws to make it harder or easier to have an abortion.

States can restrict access to abortion

Many states are now working to not ban abortion outright, but to change the point at which one can have an abortion during pregnancy.

Currently, only three states — Alabama, Arkansas and South Dakota — plan to ban abortions completely, with the exception of a medical emergency.

The picture is more nuanced in different states. Some states have trigger laws that would make it illegal for someone to have an abortion after six weeks of pregnancy.

Texas already enacted a law in 2021 that makes it illegal for anyone to have an abortion after six weeks of pregnancy.

Legislators in other states, such as Arizona and Florida, have also recently approved laws that prohibit abortion after 15 weeks of pregnancy.

Some federal courts have challenged these types of restrictions. In more than a dozen states, including Kentucky, a federal court in April 2022 blocked state laws governing when someone can have an abortion. But reversing Roe v. Wade could take these laws into effect, or lead to more legal battles to block or amend the law.

Every state will still allow exceptions, such as for medically necessary abortions or health emergencies. Each state’s exception will be slightly different.

The Supreme Court is seen through an opening among the trees on a shady road.
The US Supreme Court is expected to issue its decision on Dobbs v. Jackson Women’s Health Organization soon.
Drew Anger / Getty Images

States can expand abortion access

By one estimate, if Roe v. Wade is reversed, 21 states would retain some of the limits on abortion.

There is also increasing momentum to make it easier for some states to have abortions, for example, by allocating taxpayer money for abortion services, or by mandating insurance coverage at no additional cost.

In recent years, some states, such as Maine, Illinois, and Virginia, have changed their laws to allow medical professionals who are not doctors, like nurses, to perform surgical abortions.

Eight states, including California, New York and Washington, have laws that guarantee the right to have an abortion.

Seven states, including Colorado, Oregon and Vermont, have no limits on abortion for a pregnant woman.

In some states, meanwhile, state abortion law Roe v. Wade predicts that they may leave again. For example, Michigan has a 1931 law that makes abortion a felony, unless it is done to protect the life of the pregnant person.

A Michigan court blocked the enforcement of the law on May 17, 2022, even though the court overturned Roe v. Wade. That means the Michigan Legislature could modify state law, which could take months.

If the Supreme Court does indeed throw the question of abortion back to the states, the result of Dobbs v. Jackson could be the starting point for states to navigate a wide range of new abortion laws.

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