The announcement of Supreme Court Justice Anthony Kennedy's retirement on Wednesday was a gift to anti-abortion advocates across the country, who have been gearing up for the opportunity to overturn Roe v. Wade for decades.
Some Republican lawmakers have already passed "trigger laws" that would automatically ban abortion on the state level in the event that the Supreme Court rolls back the landmark 1973 ruling. Currently, four states—Louisiana, Mississippi, North Dakota, and South Dakota—have such a law in place.
"The way we define trigger laws is: The state has a law that says its policy is to ban abortion at a delayed effective date, and that date is ‘when Roe v. Wade is overturned,” Elizabeth Nash, the senior state issues manager at Guttmacher Institute, tells Broadly. “There are a couple of other ways that states have indicated they want to ban abortion, but none of them quite go that far.”
Nash explained that there are 10 other states that have pre-Roe anti-abortion legislation on the books, though she said it's not exactly clear how those states would have to go about reviving it in the event that the Supreme Court decision gets overturned. An additional seven states have also "expressed intent to limit abortion to the maximum extent permitted" in the absence of Roe, according to the Guttmacher Institute.
"Another way states indicate plans to ban abortion is to state somewhere in the law that it’s the state’s intent to limit abortion 'by the extent the Supreme Court allows," Nash said. "They're basically putting down a marker: 'We don’t like abortion, and we would ban it if we could.'"
All told, there are almost two dozen states that would see an almost immediate ban on abortion if Roe is overturned, transforming nearly half of the country into anti-choice territory in an instant. The Center for Reproductive Rights deems another 11 states "at-risk" for losing abortion rights.
The severity of the bans varies from state to state. Louisiana and Utah plan to ban abortion except in "extremely limited circumstances," according to Guttmacher, while Iowa and North Dakota would ban abortions taking place after six weeks of pregnancy. Louisiana and North Dakota are also two of the four states whose bans would be spurred by the trigger laws, along with Mississippi and South Dakota.
Other states have taken the opposite approach, steeling themselves for a future without a federal law protecting abortion rights, which now seems worryingly near.
Seventeen states have codified abortion-rights protections into their laws in some form, including California, New York, Connecticut and Hawaii. Some have done so out of fear that Roe could fall during President Donald Trump's time in office, with Delaware becoming the first state to implement a law safeguarding abortion rights since his election last June.
Even with Roe v. Wade as law of the land, the fight for and against abortion rights has long been fought on the state level, where conservative lawmakers have tried their best to weaken the foundation of the Supreme Court ruling with blatantly unconstitutional bans they've spent millions of dollars appealing through the courts. With another Trump-appointed justice on the bench, their costly attacks on abortion rights could pay off big—and reproductive health advocates aren't wasting any time waiting around to see how it plays out.
“This is not a drill: the lawsuits necessary to overturn Roe are already moving through the lower courts, and extreme anti-choice activists boast that they only need one new Trump justice to end legal abortion," NARAL Pro-Choice California State Director Amy Everitt said in a statement Wednesday. "Roe is in jeopardy like never before, and we can’t afford to let another Trump Justice anywhere near the Supreme Court."