The Supreme Court’s decision to overturn the landmark abortion decision Roe v. Wade Friday is expected to ban or restrict the procedure for over 40 million women across at least 26 states.
While the high court’s decision to uphold the Mississippi law challenging Roe v. Wade does not outlaw abortion, it does hand regulatory power to state governments — the majority of which have indicated their intention to make it illegal to terminate a pregnancy.
In Kentucky, Louisiana and South Dakota, abortion bans are already in place, with so-called “trigger laws” kicking in automatically upon Roe’s reversal, according to an analysis by the Guttmacher Institute, a New York-based pro-choice research organization.
In Idaho, Tennessee and Texas — where abortion is already functionally illegal after six weeks — trigger laws will automatically outlaw abortion 30 days from the decision.
Seven other states require a largely perfunctory sign-off by the state’s attorney general before laws already on the books make abortion illegal in the absence of federal protection from Roe.
Seven additional states retain pre-Roe abortion bans that now become enforceable again, and several other states are expected to soon pass laws forbidding abortion in the wake of the Supreme Court’s decision, according to an analysis by the Guttmacher Institute, a New York-based pro-choice research organization.
Meanwhile, 16 states and the District of Columbia have explicitly upheld access to abortion as a right.
In New York, under 2019’s Reproductive Health Act, abortion is considered a legal right before a fetus is viable, or in all instances where the health of the mother is at stake.
The disparity of access across the country is expected to lead to deep uncertainty, as women seeking abortions in states where it criminalized consider traveling to states where the procedure remains legal.
And while most of the laws now on the books criminalizing abortion target doctors and other providers, women seeking abortions may no longer have legal protections either.
“Women are not as protected as they once were,” Carol Sanger, a professor of law and scholar of reproductive rights at Columbia University told The Post.
“[The decision means] abortion is no longer a right and it may be a crime — states can make it a crime.”
Sanger said it wasn’t clear yet whether a woman living in a state that has outlawed abortion could be held criminally liable if she got an abortion in a state that considers the procedure legal.
“There are ways to argue it both ways, and surely it will be,” she said. “We’re going to be in a period of several years of finding out what the court says is constitutionally permissible.”
“People are going to have to tolerate a lot of uncertainty, and the uncertainty alone will influence what kind of decisions women will make,” she added.
Another legal battle to come in the wake of the Supreme Court decision will center around the abortion pill, the method of choice for the majority of US abortions.
While the pill is banned in states outlawing abortion, the FDA last year made permanent its COVID-era allowances for the pill to be delivered by mail to those seeking to terminate a pregnancy.
Whether and how states outlawing such deliveries in the wake of Friday’s ruling remains to be seen.