Interested Parties Memo: The most vulnerable states poised to ban abortion

If Amy Coney Barrett is confirmed to the Supreme Court, Roe v. Wade will be rendered meaningless before it’s ever overturned. In fact, for many people, it already is. Since 2011, more than 480 abortion restrictions have passed in states, making abortion inaccessible for many people with low incomes, Black and Brown people, and women who are forced to navigate racist and discriminatory systems. Right now, 17 abortion related cases are one step from the Supreme Court — most of these involve incremental restrictions that effectively ban abortion, without the need to overturn Roe. These incremental bans, combined with “trigger laws” designed to immediately ban abortion if Roe were to fall, and with over 20 state legislatures hostile to reproductive health care, means that what little is left of abortion access could be eliminated for an estimated 25 million women of reproductive age with Barrett on the Supreme Court. 

Status and Impact of State Bans and Restrictions:

• Last year, shortly after the Senate confirmed Justice Kavanaugh, 25 abortion bans passed in just 12 states: Alabama, Arkansas, Georgia, Indiana, Kentucky, Louisiana, Missouri, Mississippi, North Dakota, Ohio, Tennessee, and Utah. All of these laws are blocked by lower courts and some are making their way up through the appeals process.

• Since 2011, more than 480 abortion restrictions, such as mandatory waiting periods, two-trip requirements, bans on insurance coverage, and telehealth abortion bans, have passed in states, making it harder or impossible for people with low incomes and communities of color to access the care they need.

• Five states only have one abortion provider left: Mississippi, Missouri, North Dakota, South Dakota and West Virginia.

Here’s what could happen to abortion access if Amy Coney Barrett is confirmed and Roe is overturned:

• Twenty-five million women of reproductive age live in a state where abortion could be banned.

• Ten states have trigger bans, laws designed to immediately ban all or nearly all abortions if Roe were to fall: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, and Utah.

• Nearly half of the states have some combination of trigger bans, pre-Roe bans, and hostile legislatures that position them to ban abortion quickly.

Some states have already worked or continue to push to codify abortion rights within their borders in case Roe is overturned:

• In 2019, Illinois, New York, Rhode Island, and Vermont enacted laws that would protect the right to abortion no matter what happens in the White House or at the Supreme Court.

• In 2019, Vermont became the first state in U.S. history to advance a constitutional amendment process, which would affirm the right to safe, legal abortion. 

• In 2020, the District of Columbia enacted the Strengthening Reproductive Health Protections Amendment Act, codifying the right to safe, legal abortion no matter what happens to Roe. Reproductive rights champions recognized people living in the District lack statehood and are at the mercy of the whims of Congress. 

• In the wake of Justice Ginsburg’s passing, state reproductive rights champions in Massachusetts are pushing to do the same. The Roe Act would enshrine the right to reproductive freedom into state law.  

If you plan to cover or have questions about the impact the Supreme Court has on state reproductive health and rights policy, please reach out to [email protected].