When Kentucky state legislators approved one of the most restrictive abortion laws in the nation this month, they acted as if the U.S. Supreme Court’s landmark Roe v. Wade decision didn’t exist.
They weren’t the first to do so this year and they’re unlikely to be the last. Lawmakers in Ohio, Florida, South Dakota and dozens of other states have been busy for months introducing measures that directly challenge the right to abortion established by Roe v. Wade almost 50 years ago.
But if Roe is still the law of the land – and it is – why are so many people in so many states behaving as if it’s gone?
Because actors on both sides believe it will soon be.
“This is the last few months of Roe,” said Tamarra Wieder, state director of Kentucky’s Planned Parenthood Alliance Advocates. “We fully anticipate it will fall.”
“Roe is dead,” said Janet Folger Porter, the activist who helped create Ohio’s “heartbeat bill,” which would ban abortion after detecting a fetal heartbeat. “It’s the best news no one knows.”
Those predictions come as the most conservative Supreme Court in generations considers whether to weaken or dismantle Roe v. Wade when it rules in June on a Mississippi law that bans abortions after 15 weeks.
The Mississippi law is at odds with Roe’s guarantee of a constitutional right to obtain an abortion before fetal viability, which is around 23 weeks.
While the decision is still two months away, anti-abortion officials and their Republican allies in statehouses across the country are so confident Roe’s days are numbered they’ve proposed more than 500 abortion restrictions since January.
Those proposals run the gamut from outright abortion bans to burdensome rules that make it difficult, if not impossible, for abortion clinics to operate.
Many of those restrictions violate the legal standards set by Roe and, until recently, would have stood little chance of being enacted. Ohio’s heartbeat bill, for instance, passed in 2019 but never took effect because a federal judge ruled it unconstitutional.
Three years later, the legal landscape looks dramatically different. With Roe facing its toughest test in five decades, abortion foes are laying the groundwork for a post-Roe America, one in which abortion no longer is constitutionally protected and each state makes its own rules.
“There has been an effort to challenge the Supreme Court to make a decision on whether to keep Roe v. Wade,” said Ohio Rep. Tom Brinkman, a Cincinnati area Republican and longtime supporter of legislation limiting abortion rights.
“We’re hoping, with the new folks on there, they’ll rule that Roe v. Wade is not the precedent it was.”
New justices bring new strategy on Roe
The assault on Roe is intensifying, but it is not new. Activists and state legislatures have been testing legal boundaries for decades by imposing waiting periods, shorter gestational limits, mandatory ultrasounds, stricter licensing and other rules that make obtaining an abortion more difficult.
They’ve had some success, but their attacks fell short of unraveling Roe altogether. Time and again, the Supreme Court or other federal courts stepped in to preserve Roe’s finding that abortion is a constitutionally protected right.
Then, in the span of a few years, the Supreme Court added three new conservative justices, creating a 6-to-3 super majority that put legal abortion in more jeopardy than at any time since the court published its Roe v. Wade decision in 1973
Anti-abortion pounced. Mississippi’s law was among the first to defy Roe, but legislation in Texas and other states soon followed. The laws were different, but the goal was the same: Prepare for the day the Supreme Court reverses Roe.
“Folks felt the time to strike was now,” said Jessie Hill, a cooperating attorney with the American Civil Liberties Union, which defends abortion rights. “They want to have these laws in place before Roe v. Wade is overturned, so they can take effect when it is.”
In Ohio, that meant passing the heartbeat bill, which would ban abortions after about six weeks. Ohio’s legislature is also considering a “trigger law” that would make abortion illegal as soon as Roe is overturned.
Kentucky, which already has a trigger law, became the first state in the nation to effectively ban abortion when the legislation on April 14 approved a law so restrictive it forced the state’s two remaining clinics to stop performing abortions for several days. The law creates new licensing and certification rules, bans abortion 15 weeks after conception and requires the burial or cremation of fetal remains.
A federal judge temporarily blocked the enforcement of the law, allowing abortions to resume, but its fate probably depends on what the Supreme Court does in June. Will it repeal Roe outright, or settle on a compromise that diminishes it?
Chief Justice John Roberts hinted at such a compromise during oral arguments last fall, but questions from his fellow conservatives indicated a willingness to consider a more sweeping decision.
James Bopp Jr., National Right to Life’s general counsel, said he doubts Roe v. Wade can survive the next Supreme Court ruling intact. But he also doubts the court is ready to toss it out entirely.
“I think it’s likely they’ll eliminate the viability line,” said Bopp, who has argued abortion cases before the court. “That’s all they need to do to decide this case.”
‘Roe is already gone’
But even an end to the viability standard, which has already been lowered in several states, would give lawmakers significantly more leeway to set the limit wherever they like. And if they can do that, they could, in theory, set it so low that most or all abortions would be illegal.
In that scenario, it wouldn’t matter if Roe technically survives or not. The result would be the same.
Porter, the Ohio activist behind the heartbeat bill, said the Supreme Court’s consideration of the Mississippi case and its refusal to block enforcement of a Texas law that made most abortions illegal is telling. If Roe was safe, she said, neither of those things would have happened.
“Roe is already gone, effectively, whether they declare it or not,” said Porter, who is running as a Republican in northeast Ohio’s 13th Congressional District. “This is reality.”
She said the onslaught of new legislation this year accomplishes two things. It gives states multiple options to limit abortion rights no matter what the court does in June, and it sets up more court challenges if all or part of Roe survives.
“We’re never going to stop,” Porter said.
But what if, as many expect, Roe doesn’t survive? The most likely outcome, at least in the short term, would be the creation of a state-by-state patchwork of laws that ban abortion, restrict it or keep it legal.
The Guttmacher Institute, which tracks abortion-related data, predicts as many as 26 states could ban abortion this year if the court overturns Roe. That would mean millions of women could still access abortion clinics close to home with few or no restrictions, while millions of others would have to travel hundreds of miles or more to find a clinic in another state.
After Texas outlawed most abortions last year, one study found, clinics in neighboring states saw 12 times as many women from Texas seeking abortions as they did before the law.
But driving to another state is not an option for everyone. Wieder said poor women who are unable to travel far from home because of job or transportation restrictions would be impacted most if Roe falls.
“Your ability to access health care should not depend on your ZIP code,” she said.
To some extent, that’s already happening, at least in part because of restrictions that have nibbled away at Roe’s protections for years. Mississippi has one clinic. Kentucky has two, both in Louisville. And the number of clinics in Ohio has fallen from around 30 a decade ago to six today.
If the Supreme Court does what abortion rights activists fear it will in June, Wieder said, the gap between women who have access to abortion and those who don’t will grow wider.
She’s hopeful, though, such a ruling will transform the nation’s politics and energize those who want abortion to remain legal. She said she suspects many have remained on the sidelines because they don’t yet understand the implications of losing Roe.
According to a 2021 Pew poll, most Americans still favor legal abortion, with 59% saying it should be legal in all or most cases and 39% saying it should be illegal in all or most cases. That’s about the same divide Pew found in 1995.
“We’ve had 49 years of Roe v. Wade,” Wieder said. “There are people who have no idea what it is like to not have Roe.”
Hill, the ACLU attorney, said she expects they will soon find out. She said she can’t predict how quickly change will come after the Supreme Court rules, but she’s convinced change is coming.
“It’s going to be huge,” Hill said. “It’s going to be a real shock to people who haven’t been paying close attention.”