The legal status of abortion in the states if Roe v. Wade is overruled.

• Author: Linton, Paul Benjamin

ABSTRACT: This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators on both sides of the issue believe.

More than two-thirds of the States have expressly repealed their pre-Roe laws or have amended those laws to conform to the trimester scheme of Roe v. Wade, which allows abortions for any reason before viability and for virtually any reason after viability. Those laws would not be revived by the overruling of Roe. Only a few of those States have enacted post-Roe laws that would prohibit most abortions if Roe were overruled. Slightly less than one-third of the States have not expressly repealed their pre-Roe laws. Many of those laws would not be effective to prohibit abortion if Roe were overruled either because they allow abortion on demand, for undefined reasons of health or for mental health reasons; because enforcement would be precluded on state constitutional grounds; or because the pre-Roe laws prohibiting abortion have been repealed by implication with the enactment of post-Roe laws regulating abortion. In sum, no more than eleven States, and very possibly as few as eight, would have laws on the books that would prohibit most abortions if Roe were overruled.

Introduction

The possibility that a Republican will be elected president this November and the likelihood that whoever is elected president will have an opportunity to name one or more justices to the Supreme Court during his term of office have fueled speculation that a differently constituted Court may overrule Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992), and return the issue of abortion to the States. This speculation is decidedly premature. Only two justices now on the Court--Associate Justices Scalia and Thomas--have voted to overrule Roe. Chief Justice Roberts and Associate Justice Alito are believed to be "anti-Roe," but in the abortion cases in which they have participated to date, they have not voted to overrule Roe.

Although Justice Kennedy dissented in the Supreme Court's decision striking down the Nebraska partial-birth abortion ban act in 2000, (1) he did not join the dissenting opinions of the late Chief Justice Rehnquist, Justice Scalia and Justice Thomas calling for Roe and Casey to be overruled. (2) Nor, in his majority opinion for the Court in Gonzales v. Carhart, 550 U.S. 124 (2007), upholding the federal Partial-Birth Abortion Ban Act, did Justice Kennedy express any dissatisfaction with Roe, as modified by Casey, or even hint that either decision should be overruled. Thus, even assuming that both Chief Justice Roberts and Justice Alito were willing to overrule Roe (and neither justice has so indicated to date), there would still have to be at least one more vacancy on the Court after the 2012 election before there was even a possibility that Roe and Casey could be overruled by a combination of new appointments and present justices. And that possibility would require the election of a president who was opposed to Roe, who was willing to appoint an anti-Roe justice to the Court regardless of the political opposition to such an appointment and who was able to obtain Senate approval of the nominee (possibly requiring a cloture vote to end a filibuster), as well as a case properly presenting that issue to the Court.

However remote an overruling decision may appear to be at this point, the mere possibility of such a decision has led to concern regarding the legal status of abortion in the States if Roe and Casey are overruled. Regrettably, much that has been written about the effect of an overruling decision is inaccurate or misleading. The purpose of this article is to evaluate, on a State-by-State basis, the impact of a decision overruling Roe v. Wade and Planned Parenthood v. Casey on the legal status of abortion. A review of the relevant statutes and cases leaves no doubt that, in the absence of new legislation, for which there would have to be a strong contemporary political consensus, abortion would be legal in the overwhelming majority of States at least through viability and very probably after viability, as well. No more than eleven States, and possibly as few as eight, would have enforceable laws on the books outlawing most abortions throughout pregnancy.

Executive Summary

There is a widespread popular belief, shared by some commentators, that a decision of the Supreme Court overruling Roe v. Wade, as modified by Planned Parenthood v. Casey, in and of itself would make abortion illegal. This belief may be based on the notion that because the Supreme Court in Roe exercised the power to make abortion legal in all fifty States, it would also have the corresponding power to make abortion illegal, an illogical, if understandable, process of reasoning. The Court, however, does not have the authority to prohibit abortion. There is another belief, somewhat less widespread, that an overruling decision would somehow "revive" pre-Roe statutes that have been expressly repealed by state legislatures, and return us to the legal status quo ante of January 22, 1973. This belief is also mistaken. With the exceptions of Louisiana, Mississippi, North Dakota and South Dakota, no State currently has an abortion prohibition on the books that, by its express terms, becomes effective upon the overruling of Roe (and for the reasons set forth in this article the Mississippi statute would not be enforceable). This article is intended to dispel these myths and present an accurate picture of the legal status of abortion in the United States if Roe, as modified by Casey, were overruled.

More than two-thirds of the States have repealed their pre-Roe statutes or have amended those statutes to conform to the (subsequently abandoned) trimester scheme mandated by Roe v. Wade. Only one of those States--Rhode Island--has enacted a post-Roe statute purporting to prohibit most abortions throughout pregnancy and, of course, that statute has been declared unconstitutional by a federal court and is not enforceable under current constitutional doctrine. If Roe, as modified by Casey, were overruled, only the Rhode Island statute would effectively prohibit most abortions.

Of the slightly less than one-third of the States that have not repealed their pre-Roe statutes, most would be ineffective in prohibiting abortions, either because of the broad exceptions provided in the language of the statutes themselves (or state court rulings interpreting the statutes) allowing abortions for reasons of mental health or for undefined health reasons, or because of state constitutional limitations or both. In yet other States, the pre-Roe statutes prohibiting abortion may have been repealed by implication with the enactment of comprehensive post-Roe statutes regulating abortion. No more than six States--Arizona, Michigan, Oklahoma, Texas, West Virginia and Wisconsin--and possibly as few as three--Michigan, Oklahoma and Wisconsin--would have enforceable pre-Roe statutes that would prohibit most abortions throughout pregnancy. In addition, an unrepealed provision of the pre-Roe Arkansas statute probably would prohibit all abortions.

In sum, no more than eleven States--Arizona, Arkansas, Louisiana, Michigan, North Dakota, Oklahoma, Rhode Island, South Dakota, Texas, West Virginia and Wisconsin--and possibly as few as eight--Arkansas, Louisiana, Michigan, North Dakota, Oklahoma, Rhode Island, South Dakota and Wisconsin--would have enforceable statutes on the books that would prohibit most abortions in the event Roe and Casey were overruled. In the other thirty-nine States (and the District of Columbia), abortion would be legal for most or all reasons throughout pregnancy.

Alabama

The pre-Roe statute prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life or health and done for that purpose." (3) The statute, which has not been repealed, (4) has not been declared unconstitutional nor has its enforcement been enjoined. Because the scope of the health exception is not defined, the statute may not effectively prohibit many abortions, even if Roe v. Wade were overruled. (5) Under a recently enacted statute, however, currently in effect, abortions may not be performed during or after the twentieth week of pregnancy (as measured from the first day of the woman's last menstrual period) unless, in reasonable medical judgment, the procedure is necessary to prevent the pregnant woman's death or serious risk of substantial and irreversible physical impairment of a major bodily function. (6) That statute would be in force and effective (with respect to the abortions it covers), without regard to the interpretation state courts might give to the scope of the undefined health exception in [section] 13A-13-7.

Alaska

The pre-Roe statute allowed abortion on demand prior to viability, (7) and impliedly prohibited abortion after viability. (8) Section 18.16.010(d) was repealed in 1997. (9) The provision of the pre-Roe statute that prohibited post-viability abortions would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason at any stage of pregnancy. (l0) Regardless of Roe, any attempt to prohibit abortion (at least before viability) in Alaska would be barred by the Alaska Supreme Court's decision recognizing a fundamental right to abortion on state constitutional grounds (privacy). (11)

Arizona

The principal pre-Roe statutes prohibited abortion on a pregnant woman unless the procedure was "necessary to save her life," (12) and made a woman's participation in her own...