These Swing States Will Ban Abortion If Roe v. Wade Falls

The 2022 elections could determine the fate of abortion access for years in a number of major swing states.

May 3 2022, 3:11pm

UPDATE June 24, 2022: The Supreme Court just overturned Roe v. Wade, the nearly 50-year-old precedent guaranteeing the right to an abortion in the United States in a 6-3 decision. In an ruling written by Associate Justice Samuel Alito, the court ruled: “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.”

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The Supreme Court’s drafted plan to overturn Roe v. Wade will unleash chaos across the country, leading to a patchwork of abortion laws and state-by-state political wars over whether abortion will be legal.

And in some of the most crucial swing states, laws that go back to before the Civil War could immediately be used to ban abortion.

A Supreme Court draft opinion that leaked Monday night to Politico indicated the majority of the court will overturn Roe this summer, ending a half-century in the U.S. of constitutional protection for abortion rights.

If Roe v. Wade is indeed struck down, it would throw the issue back to the states. Fully 26 states are certain or likely to ban abortion if and when Roe is overturned, according to the Guttmacher Institute, an abortion rights research organization, including 13 states that have passed “trigger laws” that would fully or partly ban abortion if Roe falls.

The states with laws banning or significantly restricting abortion include some of the most important political battlegrounds in the 2022 midterms: Arizona, Georgia, Michigan, and Wisconsin. In other key swing states, like Pennsylvania, access to abortion could be just one election away from being banned.

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Here’s a state-by-state rundown of where things stand in key swing states where the 2022 elections for governorship and state legislature could determine the fate of abortion access for years to come.

Arizona

Republican Gov. Doug Ducey recently signed a law that bans abortion after 15 weeks of pregnancy—and doesn’t include exceptions for rape or incest.

His successors may push for even more restrictions—or an outright ban. Kari Lake, the Republican front-runner to replace Ducey, has called for Arizona to pass a “carbon copy” of the law in Texas, which effectively bans abortion at six weeks, while Karrin Taylor Robson, the GOP establishment’s favored candidate, has called the Texas law a “victory for life.

Arizona also has a law on the books from 1901—a decade before it became a state—that calls for prison time for anyone who assists in an abortion, though it’s unclear whether that law could be applied now.

Arizona Secretary of State Katie Hobbs, the Democratic front-runner, supports legal abortion and has pledged to try to repeal the 15-week abortion ban. If she wins, she’d need a pro-abortion-rights majority in the state Legislature to do so—both chambers are currently controlled by the GOP, but are up for reelection this fall. But if Lake or Robson wins, they may push for a near-total ban on abortion.

Florida

Republican Gov. Ron DeSantis recently signed a law that bans abortion after 15 weeks of pregnancy. That law doesn’t include exemptions for rape, incest, or human trafficking.  

DeSantis is the heavy front-runner for reelection, but even if Rep. Charlie Crist or Florida Agriculture Commissioner Nikki Fried, the two strongest Democratic candidates, manage to win, Florida’s Republican legislators just passed a gerrymandered map that will likely keep them in power for the next decade and block any attempts to repeal the newly minted law.

Georgia

Georgia Republican Gov. Brian Kemp signed a law in 2019 that would ban abortion at the point a heartbeat can be detected in the fetus—usually around six weeks of pregnancy, before many women know they are pregnant. That law would go immediately into effect if the Supreme Court overturns Roe.

Kemp and his GOP primary opponent, former Sen. David Perdue, both support the law. Democratic front-runner Stacey Abrams opposes the law, but even if she wins, she’d need a massive landslide to overturn it, as Republican gerrymanders mean the state Legislature is likely to remain firmly in GOP hands after the election.

Michigan

A 1931 Michigan law that criminalizes abortion as manslaughter is still on the books, and could be enforced if and when the Supreme Court strikes down Roe.

Michigan Republican front-runner James Craig has pledged to do “whatever I can” to keep that law in place should he win the governorship. Michigan Democratic Gov. Gretchen Whitmer tweeted Monday night that she will “fight like hell” to protect abortion access in the state, and last month filed a lawsuit seeking to invalidate the 1931 law in court. 

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The GOP-controlled state Legislature has blocked her attempts to repeal the law; legislators are up for reelection this fall, as is Whitmer.

Nevada

Nevada is one of the only swing states with constitutional protections to abortion: In 1990, voters passed a ballot initiative supporting the right to an abortion in the first 24 weeks of pregnancy. 

Democratic Gov. Steve Sisolak supports the current law. Clark County Sheriff Joe Lombardo, the GOP front-runner to face Sisolak, says he’s pro-life but won’t push to change the state’s current laws. His main primary opponent, former Sen. Dean Heller, has promised to push for “the most conservative pro-life laws enacted in the state of Nevada.”

New Hampshire

Republican Gov. Chris Sununu signed a law that bans abortion after 24 weeks of pregnancy in 2021 and mandates ultrasounds, but most abortion remains legal in the state. It doesn’t appear Sununu and a majority of state Republicans have a strong desire to push further abortion restrictions—he supports a bill to amend the law he just signed to include exemptions for  rape, incest, and fetal abnormality. Sununu is the heavy favorite for reelection this fall.

Pennsylvania

Abortion is currently legal in Pennsylvania up until the 24th week of pregnancy under state law, and both term-limited Democratic Gov. Tom Wolf and Attorney General Josh Shapiro, Democrats’ likely 2022 nominee to succeed Wolf, support abortion access.

But if Republicans win the governorship, state law could change fast. The GOP already has control of the state’s Legislature, and both of the GOP’s gubernatorial front-runners have indicated they’ll push for more abortion restrictions in the state. Pennsylvania state Sen. Doug Mastriano has already introduced a bill to ban abortion after six weeks of pregnancy, while former Rep. Lou Barletta has pledged he “will be a governor who signs pro-life legislation.”

Wisconsin

If Roe falls, Wisconsin law will likely ban abortion.

An 1849 law in Wisconsin makes abortion a felony punishable by up to six years in prison—and while it was amended in 1985 to apply to those assisting in the abortion and not the pregnant person, it has no exceptions for cases of rape or incest. 

Wisconsin Democratic Gov. Tony Evers has pushed to repeal this law but was rebuffed by Wisconsin’s GOP-controlled state Legislature. Whether he wins reelection this fall or not, that 1849 law is likely to face a test in state courts—though conservatives have a majority on the state Supreme Court.

Wisconsin Republicans have gerrymandered their state legislative maps so aggressively that it’s an almost-certainty they’ll maintain control of the legislature even in a good election year for Democrats, meaning that even if Evers wins reelection this fall they’ll stand in the way of any attempts to re-legalize abortion in Wisconsin if Roe v. Wade falls.

If Evers loses, Republicans will likely move to further codify the state’s abortion ban.

Wisconsin Republicans passed a number of measures restricting abortion access the last time they controlled the state, between 2011 and 2018, with the support of then-Wisconsin Lt. Gov. Rebecca Kleefisch, the GOP front-runner to face Evers this fall. Kleefisch has said she would “sign a heartbeat bill” that would abortion at around six weeks of pregnancy. Her main primary opponent, Kevin Nicholson, has said he’d support a full ban on abortion in the state.

Tagged:

abortion, GOP, roe v. wade, SCOTUS, anti-abortion

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