Midterm Elections Loom Large Following SCOTUS Roe v. Wade Leak

A bombshell draft opinion indicating the Supreme Court may strike down the landmark 1973 Roe v. Wade decision has rattled Washington and the nation, prompting Democrats and abortion rights supporters to sound the alarm about the future of abortion access in the United States.

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Such a decision from the Supreme Court, if final, would upend 50 years of abortion precedent and put officials at the state level in the driver's seat of determining abortion access, resulting in a patchwork of laws that vary based on where a person lives. The Supreme Court confirmed the authenticity of the draft opinion in a statement Tuesday morning but stressed it does not represent any members' final position on the issues in the case, which involves a Mississippi law banning abortion after 15 weeks of pregnancy.

Obtained and published by Politico late Monday, the draft opinion was written by Justice Samuel Alito and circulated among the justices in February. The document indicates a majority of the Supreme Court voted to overturn Roe, though justices can — and have — changed their votes after drafts have been exchanged. A decision from the Supreme Court in the Mississippi case is expected by the end of the court's term in late June or early July.

"Roe was egregiously wrong from the start," Alito wrote, adding, "It is time to heed the Constitution and return the issue of abortion to the people's elected representative." 

In the Roe decision, the court held that the Constitution protected a woman's right to an abortion before the point at which a fetus is viable outside the womb, typically around 24 weeks of pregnancy. Overturning Roe, and a 1992 case that reaffirmed its ruling, would allow states to determine their own abortion restrictions or protections.

A number of Republican-led have already taken action to roll back abortion access, passing laws that outlaw abortions at various stages in a pregnancy. Democratic-led states, meanwhile, have acted to protect abortion rights. And the state-level action on the issue of abortion has taken place not only in state legislatures across the country, but also in their own courts.

An analysis by the Guttmacher Institute, a research organization that supports abortion rights, found that 23 states have laws on the books that could be used to restrict abortion rights if the Supreme Court overturns or weakens Roe, as of May 1.

Here is where the states stand on abortion access:

States with "trigger" laws

Thirteen states have so-called "trigger" laws that would restrict abortion should Roe v. Wade be overturned by the Supreme Court: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming. Some of the states' laws would go into effect immediately following a Supreme Court decision, while others would kick in after 30 days.

In several cases, the bans take effect once the state attorney general or another official certifies that the Supreme Court's decision reverses Roe, but that could take just days following the court's decision. 

Lawmakers in Nebraska attempted to pass a trigger ban this year, but it failed in the state senate in April.

States with six-week bans

Anti-abortion rights advocates have been pressing states to enact legislation banning the procedure once an embryonic heartbeat is detected, after about six weeks of pregnancy. Eleven states have done so, though nearly all of the measures have been blocked: Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee and Texas.

Only the Texas law is in effect, as the Supreme Court last year declined to block it from being enforced. The measure has a novel enforcement mechanism that tasks private citizens, not state officials, with enforcing it by filing lawsuits in state court against anyone who performs an abortion or "aids or abets" them. Its design has inspired bills in other GOP-led states that mirror the Texas measure.

State with eight-week ban

In 2019, Missouri Gov. Mike Parsons, a Republican, signed into law a bill that made abortions illegal after eight weeks of pregnancy. A federal district court blocked the measure from taking effect, and a three-judge panel on the 8th U.S. Circuit Court of Appeals declined to lift the lower court's injunction. The full 8th Circuit heard arguments in the challenge to the law brought by Planned Parenthood last year.

States with 15-week bans

In Florida, a 15-week ban was signed into law in April and goes into effect July 1. Mississippi's law, passed in 2018, is at the center of the dispute currently before the Supreme Court.

Louisiana's 15-week measure was signed into law in 2018 by Democratic Gov. John Bel Edwards, though it will only take effect if Mississippi's law is upheld.

In Kentucky, the state legislature overrode Gov. Andy Beshear's veto of a bill banning abortion after 15 weeks of pregnancy last month. But a U.S. district court granted Planned Parenthood's request for a temporary restraining order, blocking the bill from taking effect. 

States with 20-week bans

Four states have laws on the books banning abortions after 20 weeks: Mississippi, Montana, Nebraska and North Carolina.

In Montana, Gov. Greg Gianforte, a Republican, signed a law outlawing abortions after 20 weeks last year, but a state court judge blocked the measure and two other abortion laws from taking effect in October.

States with abortion bans that pre-date Roe v. Wade

In addition to having newer laws on the books that impose limits on when in a pregnancy abortions can be performed, nine states have laws enacted before the 1973 decision in Roe that were never removed. 

Those states are Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, Texas, West Virginia and Wisconsin.

In Michigan, though, Gov. Gretchen Whitmer, a Democrat, preemptively sued 13 county prosecutors with abortion clinics in their jurisdictions in an effort to circumvent the state's 1931 pre-Roe abortion ban.

States with the right to an abortion enshrined in their constitutions

The highest courts in 10 states have recognized the right to an abortion under their respective constitutions, according to the Center for Reproductive Rights. The state constitutional protections ensure abortion will remain legal even in the wake of a Supreme Court decision upending Roe.

Some of these states, such as Florida, have passed laws restricting access, while others, like Montana, have had abortion restrictions temporarily blocked.

The 10 states are Alaska, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Montana and New Jersey.

In Iowa, an effort is underway to overturn the state Supreme Court ruling protecting the right to an abortion. That decision is expected in the next few months. Should the decision be overturned, Iowa's GOP-controlled legislature and governor have signaled they will move to further restrict abortion access. 

In Kansas, an amendment allowing for the regulation of abortion goes before voters in August, and pro-abortion rights groups in Michigan also launched a ballot drive to enshrine the right to an abortion in the state's constitution. 

States with laws protecting the right to an abortion

While many Republican-led states have passed laws restricting abortion access, Democratic-led states have moved to preserve abortion rights. Sixteen states and the District of Columbia have taken such steps: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington.