If the U.S. Supreme Court follows through on overturning the landmark 1973 Roe v. Wade case that legalized abortion nationwide, it would quickly split the country into states with abortion access and those that outlaw it.
Some states had already been preparing for the potential that the high court could weaken or overturn Roe. But the bombshell leak of the draft opinion appeared to accelerate that drive Tuesday, setting the country on course for an even more jumbled landscape of abortion rights and new battles over other reproductive rights, all before the court even issues a ruling.
The Supreme Court confirmed the leaked draft was an authentic document but said Tuesday “it does not represent a decision by the court or the final position of any member on the issues in the case.”
Almost immediately after Politico published the draft Monday night Republicans who had fostered a decades-long push to end abortion rights cheered the prospect. Democrats vowed to fight the possible loss of a constitutional right that has been in place for nearly a half-century.
In California, Democrats who wield control of the state Legislature and the governor’s office issued a joint statement late Monday announcing they would seek to amend the state’s constitution to enshrine abortion rights.
“California will not stand idly by as women across America are stripped of their rights and the progress so many have fought for gets erased,” California Democrats said. “We know we can’t trust the Supreme Court to protect reproductive rights, so California will build a firewall around this right in our state constitution. Women will remain protected here.”
South Dakota Gov. Kristi Noem, a Republican, said on Twitter she plans to immediately call a special legislative session “to save lives” if Roe is overturned. The state already has a so-called trigger law that would make abortion illegal if that happens and Noem’s office declined to say why a special session would be necessary. Her spokesman, Ian Fury, said the tweet, “speaks for itself.”
About half of U.S. states are expected to ban abortion if Roe falls, according to the abortion-rights think tank Guttmacher Institute. Twenty-two states, largely in the South and Midwest, already have total or near-total bans on the books. Aside from Texas, all are now blocked because of Roe.
Republican-led states have also been working to restrict access to medication abortion, which would allow women to get abortions without the burden of traveling to clinics that may be few and far between.
In addition to South Dakota, 12 other states have trigger laws that would immediately ban abortion if Roe is overturned and would presumably go into effect if the Supreme Court majority votes for the draft in late June or early July.
One is Oklahoma, where Republican House Speaker Charles McCall declared Tuesday that “decades of steadfast prayer and unwavering legislative efforts to protect the lives of the unborn are finally on the doorsteps of success.”
“For close to 50 years, the silent cries of the millions who lost their lives before even having a chance to live have been heard through the voices of those of us fighting for their rights,” McCall said. “The pro-life movement won, securing those yet unborn the future and promise that comes with being born in the United States of America.”
Mississippi would also automatically ban abortion and the owner of the state’s only clinic said she’d close if the draft opinion is adopted. “You put four people on the court who said they’re going to overturn Roe - that’s why they were put on. When you do that, I don’t know how you’re surprised when that’s going to happen,” Diane Derzis said.
A few states still have pre-Roe bans on the books, including Michigan, where Democratic Gov. Gretchen Whitmer has sued to remove it and pledged on Twitter Monday to “fight like hell to make sure abortion remains safe, legal, and accessible.”
The Kansas Supreme Court in 2019 declared that the state constitution protects abortion rights, but Republican lawmakers placed on the August primary ballot an initiative to overturn it.
In New Hampshire, Gov. Chris Sununu was a rare Republican governor who said he supports abortion rights and was committed to upholding Roe v. Wade. “So long as I am governor, these health care services for women will remain safe and legal,” Sununu said.
However, last year Sununu signed into law restrictions on abortion when he approved a measure banning abortion after 24 weeks of gestation, with exceptions only for pregnancies that threaten the mother’s life or health.
Polling shows relatively few Americans want to see Roe overturned. In 2020, AP VoteCast found that 69% of voters in the presidential election said the Supreme Court should leave the Roe v. Wade decision as is; just 29% said the court should overturn the decision. In general, AP-NORC polling finds a majority of the public favors abortion being legal in most or all cases.
At least eight GOP-led states have already passed new restrictions this year, expecting change from the conservative majority on the high court. Arizona and Florida banned the procedure after 15 weeks, without exceptions for rape or incest. Others, like Oklahoma, went further and made it a felony as of this summer to perform an abortion, with an exception only for the life of the mother.
Idaho followed Texas and allowed people to sue over abortions - including potential family members of the embryo.
Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law, and several states moved to expand or strengthen those protections this year.
States like Washington and Connecticut, for example, have protected abortion providers in their states from lawsuits.
The Democratic leaders in Connecticut’s statehouse, which over the weekend sent legislation to that state’s governor that would protect abortion providers, said in a joint statement Monday night they had feared a proposed decision like the one in the draft opinion and “now this nightmare appears to be all too real.”
“America is likely headed down a dark path where individual states will adopt conflicting statutes leading to additional divisions in an already divided nation,” Senate President Pro Tempore Martin Looney and Senate Majority Leader Bob Duff said.
Democratic New York Gov. Kathy Hochul said her state would “welcome with open arms” those who need access to abortion.
In Hawaii, state Sen. Roz Baker, a Democrat, questioned what more the ruling, if issued by the court, could bring.
“Are they going to go back and go after the LGBTQ community next?” she said. “Are they going to go after immigrants? Are they going to go after any of the vulnerable populations?”
In some cases, abortion laws may divide states as well.
GOP-led Tennessee also has a trigger law banning abortion if Roe is overturned, but Nashville’s district attorney on Monday tweeted that he would not prosecute any doctor who performed an abortion.
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