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Already Illegal
It is a common misconception that Roe has made abortion a realistic option for any woman who wants one. Even though Roe articulated a federal framework for abortion law, it and subsequent decisions have allowed for a great deal of flexibility. Pennsylvania Planned Parenthood v. Casey, for example, enabled states to impose certain type of restrictions, such as parental consent for minors and 24-hour waiting periods (although spousal notification laws were deemed unconstitutional).
Since Roe, different states have handled the court’s decision in very different ways. Some have treated it as an enshrinement of a woman’s right to choose, while others have regarded it as a call to restrict abortion to the fullest extent possible. In Washington, a reliably progressive state, voters passed a 1991 ballot initiative dictating that, “the state shall not deny or interfere with a woman’s fundamental right to chose or refuse to have an abortion.”
In South Carolina, by contrast, the state legislature has passed laws requiring parental involvement for minors, mandatory counseling, strict licensing requirements for clinics, and spousal notification. (The lattermost was subsequently invalidated based on the Casey precedent.) In a sense, abortion is made so difficult in South Carolina and other states that it is already essentially illegal—even though the court has ruled that South Carolina’s restrictions are consistent with Roe.
To this day, several state constitutions also include abortion bans that have been nullified by Roe and, in some cases, blocked by additional court decisions. According to the Center for Reproductive Rights, a pro-choice advocacy organization, “In states where the old laws have never been blocked by a court, state officials could begin enforcing these laws immediately; in states where the old laws have been blocked but never repealed, state officials could move to vacate court orders preventing enforcement and then enforce the bans.”
In a study titled “What if Roe Fell?”, the Center for Reproductive Rights conducted a state-by-state analysis of abortion statutes, state constitutions, political climates, and state legislatures to predict the likelihood of abortion bans being enacted in the event of Roe’s reversal. The report says that twenty-one states, mostly in the Southeast and Midwest, would be very likely to criminalize abortion, while twenty states, mostly in the Northeast and Northwest, would probably continue to permit the practice. Nine states are listed as ambiguous.
These numbers are somewhat inflated, however, becasue the study relies heavily on defunct abortion bans. For example, it considers Rhode Island likely to enforce a ban due to several invalidated laws still on its books, but it is implausible that the state’s powerful Democrats would allow this. Still, even if all thirty likely and possible candidates enacted bans, it would not even halve the number of legally conducted abortions. According to a set of statistics by the Guttmacher Institute, those thirty states accounted for just over one third of abortions in 2000. For the twenty-one states likely to actually ban abortion, the fraction drops to about one fifth.