If Roe Is Overturned, Which States Will Ban Abortion?

posted by Josh Goodman

Now that South Dakota Governor Mike Rounds has signed legislation to ban virtually all abortions, a renewed court battle over Roe v. Wade seems inevitable. So, if the Supreme Court were to overturn Roe tomorrow, what would happen?

State laws would once again have the final say as to where abortion would be legal and in what circumstances. From my analysis, 23 states would be likely to ban most abortions, 20 states would keep abortion legal (at least in the first trimester) and 7 states would be battlegrounds where it's difficult to predict what would happen. The full list is below, after the jump.

My analysis is based largely on a state tracking resource compiled by NARAL. The pro-choice organization designates each governor and each house of each state legislature as "pro-choice," "mixed-choice" or "anti-choice." From these rankings, it wasn't too difficult to predict what states would ban abortion. (It would be interesting to see whether a pro-life group would agree with NARAL's designations. A spokesperson for the National Right to Life Committee told me that they don't collect this type of information.)

Here are a few notes on how I came up with these rankings, as well as what pro-life America and pro-choice America would look like:

* Just over 137 million people would live in states where abortion was legal, while almost 129 million would live in states banning abortion. The battleground states have a population of just over 30 million.

* Of the 23 states that would be likely to have abortion bans, President Bush carried 19 of them in 2004. John Kerry won 14 of the 20 states that would be likely to allow abortion.

* In 16 states, now including South Dakota, state law bans abortion throughout pregnancy. So in these states abortion would instantly become illegal. It wouldn't necessarily stay that way, however. Once legislators had a chance to pass legislation, some of these states would likely make abortion legal. Lawmakers in other states would probably go in the opposite direction and pass new bans.

* I interpreted mixed-choice governors/houses as unlikely to approve abortion bans. For example, I deemed Nevada as likely to continue to allow abortion because the governor and both houses of the legislature are mixed-choice and there is no abortion ban currently on the books.

* I took into account natural legislative inertia -- it's much easier to maintain the legal status quo than it is to change it. Look at Kansas, where there is currently no abortion ban on the books. NARAL lists the Kansas House as anti-choice, the Senate as mixed-choice and Governor Kathleen Sebelius as pro-choice. It would be difficult to pass an abortion ban in Kansas because Sebelius and the Senate could block it.

* I included as battleground states places where the debate may hinge, either way, on a governor's veto. That seems to be the case in Massachusetts and Virginia. It's hard to say whether the legislatures in those states would have the votes to override. I also included states where the debate might hang on a few legislators in one mixed-choice house changing their minds on abortion. A handful of switchers could lead Georgia or Alaska to pass an abortion ban, or could affect whether New Mexico, Delaware or Oklahoma repeal theirs.

* Nearly all of these designations could change by January, as there are 36 governorships and more than 80% of state legislative seats on the ballot this year. As a result, South Dakota's new law will make abortion an even bigger issue in state politics this year and for the foreseeable future.

* Even if the new Supreme Court is inclined to overturn Roe (which isn't at all clear), the case won't reach the Court for years.

The complete list (* = states with current abortion bans):

States that are likely to continue allowing abortion: California, Connecticut, Hawaii, Illinois, Iowa, Kansas, Maine, Maryland, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Tennessee, Vermont*, Washington and Wyoming

States that are likely to ban abortion: Alabama*, Arizona*, Arkansas*, Colorado*, Florida, Idaho, Indiana, Kentucky, Louisiana*, Michigan*, Minnesota, Mississippi*, Missouri, Nebraska, North Dakota, Ohio, Rhode Island, South Carolina, South Dakota*, Texas, Utah*, West Virginia* and Wisconsin*

Battleground states: Alaska, Delaware*, Georgia, Massachusetts*, New Mexico*, Oklahoma* and Virginia

Comments

[Adam C]

Oklahoma will ban and the pro-life D Governor will sign. It would probably pass by SD type vote totals. Remember that party designation is not the most important indicator for support of life. Region is.

Note also that the SD, MS, and several other bans are being forwarded by Democrats.

[none]

Florida would probably require a state constitutional amendment to ban abortion. It's a relatve easy thing to do in FL, but might not make the siutation as straightforward as a legislative vote.

[Josh]

I usually think of Oklahoma as a very pro-life state (U.S. Sen. Tom Coburn is one of the leading pro-lifers in Congress), so I was surprised that NARAL listed both houses of the legislature and Governor Henry as mixed-choice. A bill to inform women considering abortions who are at least 20 months pregnant that their fetuses could feel pain passed the state House recently, but was expected to face stronger opposition in the Senate. It will be a good test of where the legislature stands. As for Florida, you make a good point -- I didn't take into account whether legislative or statutory action is necessary.

[Grumpy]

My, how far Alaska has swung. Alaska was one of the few states that repealed an abortion ban, pre-Roe.

At the same time (1972), Alaska adopted a Privacy clause in the state constitution. That could make it tricky to pass a new abortion ban -- except that it includes the phrase "the legislature shall implement this section," which some intepret to mean that lawmakers get to decide what counts as privacy. Also, a constitutional amendment is not out of the question.

[Grumpy]

I should note that the Alaska Supreme Court found that the Privacy clause even goes so far as to require public funding of abortion services, notwithstanding the state's "implementation" argument. So for Alaska to outlaw abortions, the only way would be to define fetuses as persons whose rights trump the mothers'.

[Grumpy]

And finally, I'll further add that, if & when abortion gets argued before the Alaska Supreme Court again, you'll likely hear less about abortion precedents and more about the Court's finding that Privacy doesn't cover assisted suicide, because of the risk "undue influence" to "potentially vulnerable Alaskans."

[optimist]

The analysis is pretty good, but there are some errors: Kansas, Alaska, Oklahoma, and Wyoming will likely ban abortion.

Colorado, Florida, Michigan, Minnesota, Missouri, Ohio, and Wisconsin would be battlegrounds and likely allow abortion in some form.

Rhode Island, New Mexico, Delaware, and Massachusetts would definitely allow abortion.

It generally follows that Blue states are pro choice in some form. Red states are pro life in some form. Purple states are likely to be battlegrounds.

[Josh]

Optimist, my instincts tell me you might be right, but I wanted to stick with NARAL's rankings in case my instincts are wrong. By the way, on my earlier comment I meant "statutory or constitutional" instead of "legislative or statutory."

[optimist]

thats NARAL wanting to make itself seem more powerful. If Roe v. Wade were overruled the party of pollition will matter less than the polling on abortion in the state.

A Democratic governor like Tim Kaine in Virginia maybe able to slow or prevent the GOP legislature from banning it all together, because each states dynamics matter a lot. VA is closely divided with a significant GOP advantage but enough democrats to make a difference. In Wyoming, Dave Freudethal is not stopping the conservatives from banning abortion alltogether. No way.

[Josh]

Also, on that earlier comment I meant 20 weeks instead of 20 months. As a kind reader pointed out, only an elephant is going to be 20 months pregnant.

[lpackard]

About Michigan - even though the population is pro-choice to some degree, Right to Life is huge here, and controls the state legislature. Our governor would not sign a new law to ban abortion entirely (I think), but there's already a law on the books and this particular legislature just doesn't have the votes to overturn it. Although I think if such a thing were to happen, all the pro-choice folks would become single-issue voters and the legislature might look a lot different following the next election.

[Willie]

I don't think Massachusetts or Oklahoma would be battleground states. Oklahoma would ban abortions, Massachusetts would not.

I do think the following states would be battlegrounds: Montana; North Carolina (most Tar Heels do not live in the Research Triangle or metro Charlotte areas); Pennsylvania; Colorado; Florida; Michigan; Minnesota; Ohio; Rhode Island: South Carolina (I am a lifelong Carolinian - this would be war fought along regional lines - the moderately conservative lowcountry is historically tolerant on personal privacy issues while the right-wing upstate is not); Wisconsin; and Wyoming.

Finally, I think you have Kansas exactly backwards - its a slamdunk for a ban.

[Bill Christofferson]

Wisconsin's legislature is dominated by anti-abortion Republicans in both houses, which is unlikely to change.

The Democratic governor, Jim Doyle, is strongly pro-choice and would veto any abortion ban. There are not enough votes to override him. But he is up for reelection in November and the race is expected to be tight. Both Republican candidates seeking the nomination are anti-choice.

The problem is an existing ban which is on the books but has been unenforceable since Roe v. Wade. "Pro-lifers" have successfully prevented its repeal, and it carries prison terms for doctors who perform abortions or women who have them.

If Roe were overturned, that would presumably be the law again in Wisconsin, even without legislative action.

[Jim]

In Nevada, in 1990 a referendum was passed upholding a law that allows abortions. Under the Nevada Constitution, that law can no longer be changed by the legislature, only by the people. While I still don't think that would happen (Nevadans are generally libertarian, and in a recent SurveyUSA poll, by a two-to-one measure people described themselves as 'pro-choice'), in this case the proclivities of the legislature don't have anything to do with whether Nevada bans abortion.

[Tony]

I actually live in SD so I have been giving this a fair amount of thought. I don't think the NARAL ratings are the best predictor, because there are a lot of supposedly "pro-life" politicians who are only nominally so - they fill out the surveys correctly and vote for restrictions. However, when the "rubber hits the road," they may not actually be comfortable with a ban such as the one my state has passed. My state is very pro-life, but it really depends on the year - two years ago this same ban failed in the Senate 17-18.

You should also realize that, in SD as well as other prairie states, this is not a party-line issue at all.

Finally, in states that have initiative and referendum, I think it is safe to assume that the public would get to vote on any law restricting abortion - there is talk about referring SD's abortion ban (although I do not think that will happen here unless the SCOTUS actually overturns Roe). Supposedly, only 38% of South Dakotans favor the current bill, although some of those opposed are only of that position because they don't want to pay the legal bills.