If the Supreme Court were to overturn Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide, tens of millions of Americans would live in states where abortion would be outright banned or severely restricted.
According to tracking by the Guttmacher Institute, a think tank that supports abortion rights, 26 states are certain or likely to ban abortion if the draft opinion published by Politico on Monday evening ends up being the court’s final ruling.
The bans could come from different avenues: Some states have automatic triggers that would ban abortion if Roe were overturned, some states have pre-Roe laws that are still on the books, some have six-week bans (meaning the procedure would become illegal for many women before they even know they’re pregnant) currently held up in court and some states have governments likely to pass anti-abortion measures. A number of states have more than one of these measures.
Some of the trigger laws have been in effect for over a decade, but others were passed during former President Donald Trump’s time in office as he appointed justices that Republicans in those states expected would overturn Roe. Oklahoma only passed its trigger law in 2021. The states with existing trigger laws are Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.
Many of these do not provide exceptions for pregnancies that are a result of rape or incest. Nearly all of the laws are enforced by prosecuting the medical professionals who provide the abortion.
The states that have pre-Roe laws banning abortion that would come back into effect are Alabama, Arizona, Michigan, West Virginia and Wisconsin. Last month Michigan’s Democratic Gov. Gretchen Whitmer filed suit in an attempt to overturn the 1931 law banning abortion. Under that legislation, exceptions are made for the health of the mother but not for rape or incest.
“No matter what happens to Roe, I am going to fight like hell and use all the tools I have as governor to ensure reproductive freedom is protected,” Whitmer said in April. “Today in court, I represent all those who deserve the freedom to choose their own future. That’s a fight worth having.”
Wisconsin Gov. Tony Evers, also a Democrat, pushed a bill earlier this year to repeal a nearly two-centuries-old ban, but it had little chance of passing the Republican-controlled Legislature. Evers had vetoed a number of Republican-passed anti-abortion measures in late 2021.
“Governor Evers made his position clear today that a life not wanted is a life worth wasting,” Assembly Majority Leader Jim Steineke, a Republican, said in a statement following the vetoes.
Georgia, Iowa, Ohio and South Carolina would all have six-week bans go into effect. Texas is the only state with a six-week ban, enacted last year and allowed to stand by both state and federal courts. Idaho passed a similar law this spring, but it is currently being held up in court. The Guttmacher Institute predicts that four other states with Republican-controlled state governments — Florida, Indiana, Montana and Nebraska — would likely pass laws further limiting abortion access should Roe be overturned.
Sixteen states and the District of Columbia have passed laws protecting the right to abortion. While GOP-led states have passed a number of restrictions, this year Democratic-controlled states have expanded access. In response to the leaked ruling, California’s Democratic leaders said they hoped to enshrine access to abortion in the state’s constitution, which would require voter approval.
According to the Guttmacher Institute, if Roe were overturned, the number of women of reproductive age (15-49) whose nearest provider would be in California would increase from 46,000 to 1.4 million. In Oregon, funding has been set aside for those traveling from out of state for the procedure. A number of states, including Washington, have enacted laws prohibiting legal action against those seeking or providing an abortion.
Colorado Gov. Jared Polis signed a law codifying the right to abortion last month, saying, “Colorado has been, is and will be a pro-choice state. ... No matter what the Supreme Court does in the future, people in Colorado will be able to choose when and if they have children.” April also saw Democrats in the Maryland Legislature overruling a veto from Republican Gov. Larry Hogan in order to expand abortion access and require most insurance companies to cover the entire cost of the procedure.