If the U.S. Supreme Court were to overturn Roe v. Wade today, abortion would still be legal in most states tomorrow.
Only five states have so-called “trigger laws” that immediately would prohibit abortion if and when the high court strikes down its landmark 1973 ruling that declared the procedure to be a fundamental right in the U.S. Constitution.
And while a handful of states have unenforced pre-Roe laws on the books that could be revived, the likely reality is that the overturning of Roe v. Wade — a longtime dream for many pro-life activists — will not end the battle against abortion.
“There is going to be plenty of work to do for the next quarter-century, perhaps beyond,” said Clarke Forsythe, the senior counsel for Americans United for Life. Forsythe, the author of “Abuse of Discretion: The Inside Story of Roe v. Wade” (Encounter Books, $27.99), told Our Sunday Visitor that the overturning of Roe v. Wade would create intense political pressure in several states to enact new laws to permanently legalize abortion. In addition to pushing for new pro-abortion legislation, activists with Planned Parenthood and NARAL Pro-Choice America would attack the “trigger laws” in Louisiana, Mississippi, North Dakota, South Dakota and Arkansas as “triggers against women.”
“The bioethical, the cultural and the political reasons that call into question the equal dignity of human life and the right to life are going to continue for the foreseeable future,” Forsythe said, adding that the pro-life movement will need to work hard to win elections.
“We need to educate Americans that abortion is bad for the mother and child. We’re behind in making that argument to the American people, and we need to catch up,” he said.
50 individual battles
As is the case now, most of the abortion-related legislative activity in a post-Roe United States would take place in state capital buildings.
Across the country, the pro-life movement would need to mobilize resources and personnel to educate voters and convince them to elect state representatives and governors who would pass pro-life laws to protect unborn children and women from abortion.
“The day Roe is overturned, you have 50 simultaneous battles for abortion,” said Kristan Hawkins, president of Students for Life of America.
For years Hawkins has described Students for Life as a “post-Roe organization” in that it is preparing young people, students and pro-life leaders for that political landscape. Hawkins told OSV that she recently met with leaders from the Susan B. Anthony List, another pro-life organization, to discuss which states they will need to focus on first if Roe is overturned.
“We will have 20-plus states where we will have to instantly mobilize. We’re going to have to move fast,” Hawkins said.
The speculative exercise of analyzing a United States after Roe hinges in large part on how the U.S. Supreme Court would issue its ruling. Legal experts predict the court would likely give the states the authority to determine their own abortion laws, as was the case before Roe.
“If we get the court to overturn Roe or change its decision in a major way, in a major direction, then I think we end up with 50 state battles,” said Carol Tobias, president of the National Right to Life Committee.
“The fight will not be over. It will become more localized and more decentralized than right now,” Tobias said.
Judie Brown, the co-founder and president of American Life League, a Catholic pro-life organization, told OSV that it will be a “total disaster” if the U.S. Supreme Court does not criminalize abortion outright.
“In states like New York, the pro-life movement would be completely devastated, because the law is already quite obviously going to protect abortion under any circumstance,” said Brown, who hopes the high court would recognize the humanity of the unborn in its ruling. “Anything short of that is an injustice for the baby.”
However, the expectation in most pro-life circles is that such a ruling is unlikely.
“We should not hope for one national, federal law that’s going to prohibit abortion coast to coast because that isn’t going to happen,” said Clarke Forsythe, the senior counsel for Americans United for Life. “Nor are we going to get a Supreme Court decision that prohibits abortion from coast to coast. That isn’t going to happen.”
Varying state laws
In many ways the new political landscape would be a return to the patchwork quilt of varying state-level abortion laws that existed before 1973.
“You had quite a hodgepodge of laws before Roe, and that could certainly happen again after Roe,” said Paul Linton, an Illinois attorney who used to be general counsel for Americans United for Life.
Before Roe, Linton told OSV, 30 states outlawed abortion with an exception to save the life of the mother. Some states had exceptions for life and health reasons, while others permitted abortions on a wide range of grounds that included mental health, rape, incest and genetic deformities. Four states — New York, Hawaii, Alaska and Washington — had abortion on demand.
In 2019, 10 states — New York, California, Washington, Hawaii, Connecticut, Delaware, Maine, Maryland, Nevada and Oregon — have laws that ensure abortion will remain legal if Roe is struck down. The pro-abortion lobby is pushing for similar laws in states such as Illinois, Vermont and Rhode Island.
Besides the five states with trigger laws, at least nine states have pre-Roe laws on the books that pro-abortion advocates fear could be used to ban most or all abortions. Five states have post-Roe restrictions that currently are blocked by the federal courts.
“Most states have repealed their pre-Roe laws. Of the states that have done so, maybe three to five of them might be good laws that would be effective,” said Linton, who added that the pro-abortion lobby is generating considerable political pressure to repeal those laws.
Immediately after Roe‘s downfall, Hawkins said the pro-life movement will need to prioritize its attention on the states that could go either way between abolishing abortion or keeping it legal with some or no restrictions.
“You’re going to be looking at abortion deserts, large portions of the country where abortion is going to be unavailable and illegal,” said Hawkins, who added that the fact that more pro-life leaders are talking about a post-Roe future marks a “significant shift in the movement.”
“This has only just begun,” Hawkins said. “Our mission of abolishing abortion does not end with Roe v. Wade. It’s a significant step, knowing it’s on the horizon, but this is one step. There is a lot more work that has to be done.”
Tobias said there will be a “big variety” of state-level abortion laws in the years after Roe is struck down. “That just means we’ll have to work harder in some states than others to protect the babies,” Tobias said.
Brian Fraga is an OSV contributing editor. This is the second part in a two-part series on Roe v. Wade. The first part appears here.