Roe Overruled

Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.

Justice Alito delivered the opinion of the Court in Dobbs v. Jackson Women’s Health Organization, No. 19-1392. Justices Clarence Thomas and Kavanaugh issued concurring opinions. Chief Justice Roberts issued an opinion concurring in the judgment. And Justices Stephen G. Breyer, Sonia Sotomayor, and Kagan collectively issued a dissenting opinion.

 

From the New York Times.

Future Restrictions And Politics

Dobbs has put abortion restricts on the table as a political issue in the states again - accentuating the red state, blue state divide in the United States.

The exact details of how restrictions will unfold at the state level in the next year or so are uncertain, but for the most part, it will closely track the 2020 Presidential election results, with some slippage in swing states, and a couple of outlier red states.

Likely Bans Or Restrictions In The Near Future

Notably (1) none of the eight states where abortion is now immediately prohibited except Wisconsin, (2) none of the eight states likely to be prohibited in the next month, and (3) none of the four states where it is likely to be greatly restricted relative to the status quo in the next month except Arizona and Georgia, voted for President Biden in the 2020 election. (I have reassigned Florida to the uncertain category contrary to the New York Times categorization.) 

Republicans control all houses of the state legislature and the Governorship in all of these twenty states except Wisconsin, Kentucky and Louisiana (which have Democrats as Governors, but Republican controlled state legislatures).

In Wisconsin: "The state has a law from before Roe that bans nearly all abortions and makes performing them a felony. The Democratic governor and attorney general have said they will not enforce the ban." But, local prosecutors, who are elected (apparently a change adopted in 2008), may seek to bring criminal prosecutions without their cooperation. (The only places where District Attorneys are not elected are Connecticut, New Jersey, Alaska and the District of Columbia, although a state attorney general is the only elected prosecutor in Delaware and Rhode Island). 

In Arizona: "The state enacted an abortion ban after 15 weeks, with no exceptions for rape or incest, which takes effect in September. Arizona has an inactive ban from before 1973, but the governor has said the 15-week ban will take precedence."

In Georgia: "The state enacted a ban on abortion after six weeks of pregnancy, but a court blocked it. The state filed an appeal and a court stayed the case pending the Supreme Court’s decision on Dobbs."

States With Uncertain Near Term Laws 

The New York Times lists nine states where the post-Dobbs state of abortion laws are uncertain, but a fair reading says that Virginia and Montana don't belong on that list, while Florida listed as likely to have restrictions does belong in the uncertain category. So, there are really eight states that are uncertain in addition to the twenty that do or are likely to have swift new restrictions.

Thus, only two states (Michigan and Pennsylvania) that backed President Biden in the 2020 election are in the uncertain category.

In Michigan: "The state has a law from before Roe that would ban nearly all abortions, but it has been blocked in state court. The Democratic governor and attorney general have also said they will not enforce the ban." Republicans currently control the state legislature and there are elected local district attorneys who could enforce it, if state courts don't protect it with a state constitutional right.

In Pennsylvania: "Abortion is not protected by state law. Republicans currently control the state legislature, but the current Democratic governor has vetoed anti-abortion restrictions."

In Florida: "The state enacted an abortion ban after 15 weeks of pregnancy, which will go into effect on July 1. The state’s high court recognized the right to an abortion in its Constitution three decades ago, but the court has become more conservative, with three of the seven judges appointed by the Republican governor."

Republicans control the Governorship and the state legislatures in five of these states that voted for Trump in 2020 (Florida, Indiana, Iowa, Montana and Nebraska even though its unicameral state legislature is nominally non-partisan), and control the state legislature but not the Governorship in the other two of these states that voted for Trump in 2020 (Kansas and North Carolina). 

New restrictions are likely, within the year, in Indiana, Iowa, and North Carolina. 

Nebraska recently rejected a trigger law to take effect immediately but will be holding a special session to restrict abortion post-Roe. 

There are state constitutional protections in Kansas and Florida, although a state ballot issue in August will seek to repeal state constitutional protections in Kansas, and the Florida Supreme Court might reverse state constitutional protections it enacted three decades ago. 

All of the five states that President Biden won in 2020 that are potentially banning or heavily restricting abortion now or in the immediate future: Wisconsin, Arizona, Georgia, Michigan, and Pennsylvania, were very narrow Biden wins. 

But, among these five states, immediately enforced restrictions are likely only in Wisconsin, Arizona, and Georgia. Georgia's restrictions are likely to be severe, while Arizona's are likely to have much less impact since it applies only to abortions after fifteen weeks (which make up only a quite small percentage of the total number of abortions). 

Prospects For No New Restrictions In Two Red States

There are twenty two states, and the District of Columbia, where abortion rights are secured for the time being. Twenty of those states and the District of Columbia backed President Biden in the 2020 election.

Meanwhile, only two red states based on the 2020 election are not on the path to potentially imminently banning or greatly restricting abortion due to state constitutional rights parallel to Roe v. Wade: Alaska and Montana. 

In Alaska: "The state’s high court has recognized a right to “reproductive choice” under its Constitution."

Alaska is the least religious and one of the least non-Hispanic white states to have voted for Trump in 2020. 

In Montana, where Republicans control the state legislature and the Governorship, "The state has a ban after 20 weeks of pregnancy, which is not in effect, but abortion opponents are likely to seek its enforcement. The state’s high court ruled that its Constitution protects the right to an abortion."

Blue States Where Republicans Hold Some Power

New Hampshire voted for President Biden in the 2020 election, but has a Republican governor and a Republican controlled legislature, so it is arguably also a red state in that sense. It has no anti-abortion laws on the books, however, and is unlikely to enact such a law in the near future.

In Virginia: "Abortion will most likely stay accessible, though it is not expressly protected by state law. Split control of the state legislature may prevent significant changes until the next election in 2023." The Governor is a Republican.

Massachusetts, Maryland and Vermont, all of which voted for President Biden in the 2020 election, have Republican governors but also state law protections for abortion. 

Minnesota, which also supported President Biden in the 2020 election, has a split legislature and a Democratic governor, but also has state law protections for abortion.