States Are Deciding on Abortion Without the Supreme Court

Both sides of the abortion debate anticipate that come July, the Supreme Court will have overturned Roe v. Wade and with it the constitutional right to abortion, handing anti-abortion activists a victory they have sought for five decades. But from Florida to Idaho, Republican-led state legislatures are not waiting: They are operating as if Roe has already been struck down, advancing new restrictions that aim to make abortion illegal in as many circumstances as possible.

Under Roe, states cannot prohibit abortion before a fetus is viable outside the womb — around 23 weeks into pregnancy. But bills moving through legislatures are outlawing abortion entirely, or at six, 12 or 15 weeks of gestation. On Thursday, Florida passed a 15-week ban even as opponents warned it was unconstitutional so long as Roe stands. In Oklahoma, a Senate committee approved a bill that would prohibit abortion starting 30 days after the “probable” start of a woman’s last monthly period.

Some states are trying to ban or limit pills that induce abortion, which supporters of abortion rights had hoped would provide a safe and legal workaround. Several states have advanced laws like the one the Supreme Court allowed to take effect in Texas that puts enforcement in the hands of private citizens. Texas allows lawsuits against anyone — from an Uber driver to a doctor — who knowingly “aids or abets” a woman getting an abortion after the sixth week of pregnancy, rewarding $10,000 plus legal fees for successful suits. On Thursday, the Idaho Senate passed a bill that would award a minimum of $20,000 to family members who sue, including “siblings of the preborn child.”

The frenzy of activity in state legislative sessions over the past two months offers a glimpse of a post-Roe America, when the Supreme Court would return the question of abortion rights to the states. While some states closer to the coasts — California, Vermont, New Jersey among them — have moved to enshrine a right to abortion, far more are trying to restrict it.

“All gloves are off, and everybody’s trying different things,” said Sue Liebel, the state policy director for the Susan B. Anthony List, which helps elect anti-abortion lawmakers. “It’s an epitome of the American spirit and American creativity, trying to get around unsettled law. I think we’ll see more of that. I think that’s what states are looking for.”

Abortion opponents were encouraged enough by the arguments before the Supreme Court in December that the general counsel for Americans United for Life told states that they “should not hesitate to pass the strongest abortion limits possible.” The Guttmacher Institute, which supports abortion rights, counts at least 531 anti-abortion restrictions introduced in 40 states this year. Last year, states passed more than 100 laws restricting abortion, the most of any year since the court decided Roe in 1973.

On the newest frontier are bills to restrict access to medication abortion, which Americans United for Life identified as first among the most “pressing priorities” for 2022 legislative sessions. In December, the Food and Drug Administration permanently lifted a requirement that the medication be obtained in person, allowing it to be delivered by mail. Guttmacher reports that more than half of all abortions in 2020 were done with pills. But many states are attempting to ban delivery of the pills, or require them to be picked up on a second or third visit.

The case before the Supreme Court, Dobbs v. Jackson Women’s Health Organization, concerns a Mississippi law that bans abortion if the “probable gestational age of the unborn human” is more than 15 weeks. The state has asked the court not only to uphold that law but to overturn Roe v. Wade. That landmark ruling prohibits states from banning abortion before the fetus can survive outside the womb.

The court’s 1992 decision in Casey v. Planned Parenthood affirmed Roe, and said that states could not impose an “undue burden” on women seeking abortions before viability. For nearly two decades after Casey, state legislators who opposed abortion avoided passing gestational age bans anywhere short of 23 weeks. They recognized that a majority of justices supported Roe, and worried that the court might even expand abortion access.

Now, given the anti-abortion leanings of three justices appointed by former President Donald J. Trump, and the questions the justices posed, both sides believe the court will say that there is no constitutional right to abortion.

That would leave supporters of abortion rights with little legal recourse to fight the new state bans, unless Congress passed a bill establishing a right to abortion. Last week, Republicans in the Senate declined to consider such a bill.

Still, anti-abortion legislators are taking a belt-and-suspenders approach, hoping that one or another new law will effectively outlaw abortion when the court rules.

Twelve states already have so-called trigger bans, which would prohibit abortion if the court overturned or struck the central ruling of Roe. But those states are advancing other restrictions in case the court stops short of that.

Oklahoma, for example, already has a trigger ban. But the new proposal for a ban after 30 days would effectively rule out abortion, given that the state requires women to wait 72 hours after consulting with a medical provider, and the average menstrual cycle is 28 days.

The same state senate committee that passed that measure also approved three others: a Texas-style enforcement of a ban at six weeks that would take effect as soon as the governor signs it; an amendment to the state constitution saying it does not provide a right to abortion; and an expanded trigger law that would ban abortion even if the Supreme Court overturns Roe “in part.”

While Missouri and Tennessee have trigger bans, they also have cascading bans anticipating what gestational age limit the court might allow. Tennessee’s ban blocks abortion at six, eight, 10, 12, 15, 18, 20 and 22 weeks after the start of a woman’s last monthly period.

“It’s like having a reserve price on eBay,” said Carrie Severino, the president of the Judicial Crisis Network, which opposes Roe. If the court says 15 weeks is an appropriate limit, but not six weeks, “then the states say, ‘Great, we have one of those.’”

Most bills have provisions to allow abortion to save the life of the mother. But even on that, states are cracking down. An Oklahoma proposal says that providers should not be allowed to terminate a woman’s pregnancy “based on a claim” that she intends to kill herself if she cannot get an abortion. That bill also classifies abortion as homicide.

And states with trigger bans are still passing restrictions that would make it harder to get an abortion if the court declines to overturn Roe. An omnibus bill heading toward passage in Kentucky would require abortion clinics to individually cremate the remains of each fetus, which costs thousands of dollars. Planned Parenthood, which runs one of two remaining abortion clinics in the state, has said that the expense would force it to stop providing the procedure.

The Supreme Court could strike a compromise, upholding Mississippi’s 15-week limit but stopping short of overturning Roe. Neither side considers that likely; dozens of state bans are working their way through federal courts, so the justices would soon face new cases asking what earlier time limits were allowed.

“We’d just get dragged into another cycle of unending abortion litigation,” said Ms. Severino, of the Judicial Crisis Network. Supporters of abortion rights, too, told the justices during oral arguments that upholding the Mississippi law equates to overturning Roe.

Even if the court attempts some middle path, many trigger bans leave it to the governor or the state attorney general to determine whether Roe had been repealed “in whole or in part.”

Polls show that about two-thirds of Americans do not think Roe v. Wade should be overturned. A Gallup poll in January found that two-thirds of Americans were dissatisfied with abortion laws, and that most of those people said it was because the laws were too strict. It was a reversal from the previous two decades, when more Americans said they were dissatisfied because the laws were not strict enough.

Abortion rights supporters say public opinion might give pause to some lawmakers who have supported restrictions in the past, now that stricter laws seem likely to take effect rather than be stymied in court. Legislatures in at least four states have rejected a six-week ban with Texas-style enforcement. Lawmakers in two of those states, South Dakota and Arkansas, argued to wait and see what happened with Roe. Florida legislators pursued the 15-week ban instead, casting it as a compromise, and Arizona is expected to follow suit.