On Friday, July 24, the Supreme Court released its official decision in the case Dobbs v. Jackson Women’s Health Organization, overturning the 1973 case Roe v. Wade which ruled that the federal constitution protected the right to abortion. In an opinion expected since a draft was obtained by Politico early last month, Justice Alito, supported by Justices Thomas, Gorsuch, Cavanaugh, and Coney-Barrett, stated that the Constitution has nothing to say regarding abortion, meaning that states may now make laws restricting or allowing abortions without federal control. Chief Justice John Roberts filed an opinion concurring with the judgment, making the final ruling a 6-3 decision along partisan lines, with Justices Brier, Sotomayor, and Kagan dissenting.
Even though the decision has just been released, it is already clear where abortions will and will not be restricted; it will be a division that will split down partisan lines. Blue states will continue to be the most supportive of abortion rights, namely in New England, the West Coast, and a few Mid-Western states. These states could become magnets for women who need to get abortions from out-of-state, an issue which The New York Times noted could cause issues with abortion access, even in states which are sure to protect abortion access, due to increased demand from out-of-state residents. Evidence of this pattern is already clear in states like New Mexico, one of only six states to allow late-term abortions, whose health care system has been overwhelmed for years by women seeking out-of-state abortions.
Red states will be the least supportive, with an estimation that 25 to 26 could ban abortion right away, such as Texas, Mississippi, Arkansas, Idaho, and many others. The Guttmacher Institute noted that 31 states have introduced abortion bans this year, some of which are likely to be total bans on abortion with exceptions only in cases where there is a serious threat to the woman’s life. Some of these bans may not even allow exceptions in cases of rape or incest.
The New York Times podcast The Daily noted that, in effect, this means that abortion will remain available to wealthy women from these red states who can travel greater distances to access out-of-state abortion clinics, making those who will bear the brunt of this legislation poor women who do not have access or cannot afford to travel out-of-state for an abortion.
There are some states where the future of abortion is indeterminate now that Roe has been overturned, such as Kansas, Virginia, and Florida. These regions are essential due to their proximity to clusters of red states, which are the most likely to ban abortion outright. If these indeterminate states were to legalize abortion, they could act as magnets closer to home for women living in regions where abortion may soon become illegal and increase access to lower-income women looking for out-of-state abortion providers.
According to the Guttmacher Institute, as of June 1, seven states have retained unenforced pre-Roe abortion bans, thirteen have laws on abortion bans in place which will enter into effect now that Roe is overturned, and nine have post-Roe restrictions which are currently being blocked by courts, but could now quickly come into effect. Seven have laws prepared to restrict abortion to the “maximum extent” post-Roe. Four states have constitutional amendments that state that their constitutions do not protect abortion.
In contrast, only four states and the District of Columbia have codified the right to abortion throughout pregnancy, and twelve have allowed abortions prior to viability or when necessary for the health and safety of the mother.
In May, after the draft opinion was released, hundreds of pro-choice protests swept the country, notably in Washington DC, where a crowd of thousands gathered and marched to the Supreme Court. However, despite these crowds, red states have still readied themselves for the official release of the Supreme Court decision and will now restrict and ban abortion, whereas there has been comparatively less action seeking to protect abortion legislatively at the state level or the federal level, as noted in the numbers above.
While red states will likely ban or heavily restrict abortions, and blue states will largely continue to protect abortion access, several states remain in a gray area which could be decisive for the access of lower-income women living in states with abortion bans who attempt to receive abortions out-of-state. Now that the Supreme Court has overturned Roe, the question of abortion will become a matter of state legislation, a question that should be closely watched in the coming days as the nation witnesses the aftermath of the Supreme Court’s ruling.