This article is part of a larger series titled “The End Of Roe.” Head here to read more.
In a matter of weeks, the Supreme Court is expected to issue a seismic opinion in Dobbs v. Jackson Women’s Health Organization. If a recent and unprecedented leak from the Court is correct, abortion will be heavily restricted or completely banned in about half of the U.S.’s 50 states.
But changes to legal access to abortion, while radical and widespread, will happen unevenly under a patchwork of varying state laws. Overturning Roe just means states are free to decide how to, or if, to allow access to abortion services. Sixteen states will immediately, or in short order, ban abortions in almost all circumstances for residents. Legal disputes are expected to arise in two more states to decide whether abortion bans passed before 1973 can come back into effect or not.
Thirteen states have trigger laws banning abortion that were passed to go into effect when the court overturned Roe. These laws will go into effect immediately, or in a short period of time, once the court rules. Another five states have pre-Roe abortion bans that are still on the books and could be resurrected. Legal disputes are already underway or expected in two of these states, and in another it is unclear whether the pre-Roe law or an unconstitutional post-Roe law will go into effect.
Another four states will effectively ban abortion by only allowing abortions to be performed prior to the detection of a fetal heartbeat, which occurs as early as six-weeks. Further, any state fully controlled by Republicans could move to ban or tightly restrict abortion with new legislation now that the court has struck down the reproductive rights granted in Roe.
A Florida law restricting abortion after 15-weeks is also likely go into effect upon Roe’s demise. Other states under total GOP control and where the right to an abortion is not protected under the state constitution, like Nebraska, could pass new laws banning or heavily restricting abortion after the court hands down its ruling in Dobbs.
Here is a guide to what will change, and where.
Trigger Ban States
In 2005, South Dakota became the first state to enact a trigger law that would ban abortion immediately, or in short order, after either the Supreme Court overturned Roe or the states enacted a new constitutional amendment banning abortion. These trigger laws were spurred by the confirmation of conservative justices that anti-abortion lawmakers knew opposed the right to an abortion.
The first wave of trigger laws came after Justice Sandra Day O’Connor, a conservative justice who still backed abortion rights, announced her retirement. Anti-abortion lawmakers saw O’Connor’s retirement and replacement by Justice Samuel Alito as a harbinger that they were getting close to achieving success.
A second wave of trigger laws came more recently after the retirement of Justice Anthony Kennedy, who, along with O’Connor, prevented Roe from being overturned in the Casey v. Planned Parenthood decision. Kennedy’s replacement by Justice Brett Kavanaugh spurred a flurry of new trigger laws that only increased after Justice Ruth Bader Ginsberg died in 2020 and was swiftly replaced by Justice Amy Coney Barrett.
The state’s 2021 trigger law immediately bans all abortions within the state except those where it would be necessary to save the life of the mother. The law punishes doctors who perform abortions with up to 10 years in prison and fines up to $100,000. The state may revisit the law’s lack of exceptions for rape and incest, Gov. Asa Hutchinson (R) said in May.
Idaho’s trigger law banning most abortions in the state takes effect 30 days after Roe is overturned. The law punishes doctors performing abortions with a minimum of two years in prison. The only exceptions to the law are abortions to save the life of the mother and when a patient can show evidence of a report field with law enforcement alleging that the pregnancy is the result of rape or incest. Some Republicans in the state, like Lt. Gov. Janice McEachin (R), are calling for even stricter laws, including eliminating the exceptions for rape, incest and the life of the mother and pushing to classify abortion as felony murder.
The trigger law banning abortion in almost all cases goes into effect immediately. The law only provides an exception for abortions to save the mother’s life.
Louisiana’s 2006 trigger law immediately bans almost all abortions in the state except in circumstances where the mother’s life is at risk. The law punishes abortion providers with up to 10 years in prison and fines up to $100,000. Louisiana’s law is the only one passed by a state government fully controlled by Democrats at the time. Republicans in the state legislature considered legislation classifying abortion as a homicide this year. Such a law would make it possible for women obtaining an abortion to be charged with murder. After a wave of negative press, the bill did not advance.
The state’s 2007 trigger law would ban almost all abortions in the state within 10 days of the decision overturning Roe. The law grants exceptions in the case of rape and when it would save the life of the mother.
A 2019 trigger law immediately bans abortion in the state, except to save the mother’s life or prevent serious bodily harm, upon certification from the governor, attorney general or legislature that Roe has been overturned. The law would penalize anyone who induces an abortion with between five to 15 years in prison. It does not state whether or not a woman taking abortion drugs could be charged under the statute for inducing her own abortion.
The state immediately bans almost all abortions except in the case of rape, incest or the where mother’s life is at risk under its trigger law passed in 2007.
Oklahoma’s trigger law banning all abortions except in cases where necessary to save the life of the mother goes into effect immediately. The Republican-run state government passed a new law in May increasing penalties for performing an abortion to a maximum of 10 years in prison and a fine up to $100,000.
The state’s 2005 trigger law ― the first one passed in the country ― immediately bans all abortions except to save the life of the mother. The law bans both medical abortions and the provision or prescription of any abortion drug to a pregnant woman. The punishment is up to two years in prison and a fine up to $4,000. Gov. Kristi Noem (R) said that she would call a special legislative session in the event Roe is overturned. The session is not necessary to trigger the state’s abortion ban, but could be used to enact further restrictions like banning companies from reimbursing employees for out-of-state travel to obtain an abortion.
Tennessee enacted a trigger law in 2019 that bans all abortions except in when the life of the mother is at risk. Abortion providers would face three to 15 years in prison and fines up to $10,000 for performing an abortion in the state. The law goes into effect 30 days after the Supreme Court overturns Roe.
Almost all abortions will be banned within 30 days after Roe is overturned under Texas’ trigger law. The only exception to the law is if the mother’s life is in danger. Providers performing an abortion could face life in prison and a fine of at least $100,000.
The state’s 2020 trigger law banning almost all abortions in the state goes into effect as soon as the legislative general counsel affirms that the court has overturned Roe. The law bans all abortions except in the case of rape, incest, severe birth defects causing the baby to die shortly after being born or be born into a mentally vegetative state and the life of the mother is in danger. The rape and incest exceptions can only be used if the act was previously reported to law enforcement.
Wyoming’s trigger law banning most abortions goes into effect five days after the governor certifies that Roe is overturned. The law bans all abortions except in the cases of rape, incest or the life of the mother is in danger.
Eight states have pre-Roe abortion bans still on their books, but three of those states have since enacted trigger ban laws that will take precedence over the old laws enjoined by court orders since 1973. Some of the five states that still have pre-Roe laws on the books and no trigger ban law are likely to see the old law challenged in court before it can come back into effect.
Alabama still has a pre-Roe abortion ban on its books that has been enjoined by a court order since 1973. The pre-Roe law provides an exception for the life of the mother and punishes abortion providers up to one year in prison and a maximum fine of $1,000. While this law may now be resurrected, it could also be superseded by an unconstitutional law the state enacted in 2019. That law, which was passed with the hopes that it would lead the Supreme Court to overturn Roe, similarly bans abortion in the state but carries much stiffer penalties. A provider performing an abortion could face up to 99 years in prison under the post-Roe law and up to 10 years for attempting to perform an abortion. Which law goes into effect may be decided in the courts, unless the state government, dominated by Republicans, passes a new law superseding both prior laws.
A near-total abortion ban suspended by the court’s decision in Roe in 1973 could be revived if Roe is overturned. The law includes an exception for the life of the mother. But Gov. Doug Ducey (R) wants a newer law banning abortion after 15 weeks that was passed in 2022 to supersede the old ban.
“This law was signed this year,″ Ducey said in April. “I think that the law that you signed in 2022 supersedes 1973.″
The author of the 15-week ban law, however, said that the law includes a provision declaring that the 2022 law does not supersede the pre-Roe abortion ban if it were to become valid again. This matter will likely be decided in court.
Michigan retains a pre-Roe abortion ban law enacted in 1931 on its books. The law, which includes an exception for the life of the mother, was suspended by a court order in 1973. In anticipation that the law could come back to life, Planned Parenthood and Gov. Gretchen Whitmer (D) filed lawsuits in state court to block the old law from being revived. A Michigan Court of Claims judge found the law in violation of the state’s constitution in May as part of the lawsuit filed by Planned Parenthood. Whitmer continues to press the state Supreme Court to rule that the right to an abortion is protected under the state’s constitution. The pre-Roe law will remain suspended, leaving abortion legal in the state as the two lawsuits continue to move through the state’s court system. State Attorney General Dana Nessel (D) said that she would not enforce the pre-Roe law’s ban on abortion if it is revived, but noted that she would have no power over local prosecutors who choose to enforce it.
A 19th century abortion ban in West Virginia would come back to life if Roe is overturned. The law punishes abortion providers with three to 10 years of prison. It contains an exception for the life of the mother.
The state’s 1849 abortion ban would be revived if Roe is overturned. The law punishes providers with up to six years in prison, or up to 10 years if the pregnancy is quick (the fetus is moving, which normally happens between 16 and 20 weeks). It includes an exception for the life of the mother. State Attorney General John Kaul (D) said he will not enforce the law, but he’d have no power to stop local prosecutors from doing so. Gov. Tony Evers (D) supports overturning the law, but the heavily-gerrymandered Republican legislature wants to keep the law and enhance its restrictions. The 2022 midterm elections may change things as the Republican challenger to Kaul says he would enforce the law statewide if elected and the challengers to Evers would sign legislation further restricting abortion access passed by the legislature.
Georgia enacted a six-week abortion ban in 2019 that bans abortions when a fetal heartbeat can be detected. The law was blocked by the courts from going into effect, but will likely be enforceable if the Supreme Court overturns Roe. A six-week ban will function as a near-total ban on abortion as many women do not even know if they are pregnant at six weeks. The law contains exceptions in the case of medical emergencies, rape and incest. The latter two exceptions can only be approved if a report is filed with law enforcement.
Iowa Republicans passed legislation in 2018 banning abortions when a fetal heartbeat can be identified ― usually around six weeks into a pregnancy. The state Supreme Court, however, ruled that the law was unconstitutional, as it violated a 2018 court decision that found a right to abortion in the state’s constitution. Gov. Kim Reynolds (R) and Republican legislators have asked the state Supreme Court to overturn that 2018 decision as it considers the constitutionality of another restrictive abortion law. They hope the court will reach a result to their liking since Reynolds has appointed four judges to the court since 2018. If the court overturns its 2018 precedent then abortion will be banned at around six weeks. The state may also take further action to enact a total abortion ban.
Abortion would be banned in Ohio at around six weeks, according to the state’s “fetal heartbeat” law. A federal court blocked the law from going into effect since it violated Roe’s grant of reproductive rights. The state’s six-week abortion ban would go into effect after the court’s order blocking it is lifted. Gov. Mike DeWine (R) stated that he would sign a law completely banning abortion. The state legislature considered legislation to enact a trigger ban to go into effect when Roe is overturned, but put that bill on hold to see what the Supreme Court would do first.
South Carolina enacted a six-week “fetal heartbeat” ban law in 2021. Like the laws in Georgia, Iowa, Ohio and South Carolina, a federal court blocked the law from going into effect. Once the court lifts the block on the law, it will be illegal to obtain an abortion in the state when a fetal heartbeat can be detected. South Carolina Republicans considered legislation totally banning abortion in 2022, but did not pass it. That may change if Roe is overturned.