brett kavanaugh donald trump family supreme court nominee
Abortion rights activists are worried President Donald Trump’s Supreme Court nominee, Judge Brett Kavanaugh, will be a death blow to Roe v. Wade. But that’s not
Chip Somodevilla/Getty Images

The US Supreme Court declared abortion was legal and that women had a constitutional right to the procedure with the landmark case Roe v. Wade in 1973.

But the reality of that right today varies considerably across the states.

Since then, antiabortion activists and lawmakers have found ways around Roe to make it as difficult as possible for women to get the procedure in most states.

Many legal scholars don’t think the Supreme Court would outright overturn Roe — even if President Donald Trump gets his second nominee, Brett Kavanaugh, on the bench. The more likely route is that abortion rights will slowly erode over time until only women in blue states (or rich women who can travel there) can get them.

Here’s a look at some of the major state laws that are restricting access to abortion across the country:

Targeted Restrictions on Abortion Providers (TRAP) Laws

Targeted Restrictions on Abortion Providers (TRAP) Laws
Abortion rights advocates rally outside of the Supreme Court in Washington, DC on March 2, 2016.
 Drew Angerer/Getty Images

Targeted Restrictions on Abortion Providers— or TRAP — laws impose strict requirements on abortion clinics and providers. The standards are frequently so specific that clinics often can’t afford the changes, and end up closing down altogether.

Nine states specify the size of the procedure rooms, seven specify the width of the clinic corridors, and eight require physicians to have admission privileges at a nearby hospital in case complications arise — even though less than 0.5% of abortions result in complications that require a hospital visit.

An Alabama law mandated that abortion clinics cannot be within 2,000 yards from a school before a judge struck it down.

The most famous law, Texas’s HB2, went all the way to the Supreme Court in Whole Woman’s Health v. Hellerstedt. In June 2016, the high court struck it down in a 5-3 decision.

The justices concluded that the law “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”

Though SCOTUS deemed Texas’s TRAP law unconstitutional, 23 states still have laws on the books that “regulate abortion providers and go beyond what is necessary to ensure patients’ safety,” according to the Guttmacher Institute, a leading research and policy organization on reproductive health.

Specific week bans

Specific week bansSkye Gould/Business Insider

One of the most common ways to restrict abortions is to set limits on when women can get them. Specific week bans, the most popular of which is the 20-week ban, only allow abortions before 20 weeks into the pregnancy, for example.

In Roe v. Wade, the Supreme Court didn’t specify when abortions were legal, deciding at the time to vaguely make it unconstitutional to outlaw them up until the fetus was “viable,” since the science hadn’t (and still hasn’t) determined at the time when that was, medically speaking.

States have seized on this ambiguity and passed specific week bans. A whopping 43 states have passed some type of gestational limit, usually only allowing exceptions to if the mother’s life is in danger.

According to 2014 data, 89% of elective abortions occur in the first trimester of pregnancy. The vast majority of the 10% that occur after are for medical reasons.

Three specific examples of week bans include fetal heartbeatfetal pain, and personhood restrictions.

Fetal heartbeat limits

Fetal heartbeat limits
Demonstrators protest against abortion restrictions in Ohio in 2011.

In December 2016, the Ohio legislature passed a bill that would ban abortion after the fetus’ heartbeat can be detected.

Gov. John Kasich vetoed the so-called heartbeat bill, saying it was “clearly contrary to the Supreme Court of the United States’ current rulings on abortion,” and that signing it into law would ensure the “State of Ohio will be forced to pay hundreds of thousands of taxpayer dollars” in a losing lawsuit. (He also signed a 20-week ban into law that same day).

Doctors can detect a fetus’ heartbeat as early as six weeks into pregnancy. Women usually don’t find out they’re pregnant until four to seven weeks in — meaning the bill could have left many women unable to get a safe, legal abortion in the state because they wouldn’t have known they were pregnant.

Several other states have passed or tried to pass fetal heartbeat laws, but governors have vetoed them, the bills have died in committee, or courts have struck them down. No state currently has such a law on the books.

Fetal pain

Fetal pain
Opponents and supporters of an abortion bill hold signs near a news conference outside the Texas Capitol, in Austin, Texas.
 Eric Gay/AP

In March of 2016, Utah passed a law requiring patients undergoing an abortion after 20 weeks of pregnancy to be put under anesthesia or given pain killers, based off the medically unsubstantiated claim that fetuses are able to feel physical pain.

A 2005 study on the issue of fetal pain found that the nerve and perception systems are not developed enough for a fetus to feel pain until 29 or 30 weeks of pregnancy, a point at which practically zero abortions occur.

As of 2013, no subsequent research has challenged those findings.

Thirteen states currently require abortion providers to counsel women undergoing the procedure on the unproven fetal pain claim.


The Rev. Patrick Ma honey, National Director of the Christian Defense Coalition, prays outside Planned Parenthood Carol Whitehill Moses Center May 5, 2017 in Washington, DC. 
Alex Wong/Getty Images

Personhood initatives seek to define unborn embryos and fetuses as people under the law, affording them all the same rights and thus effectively classifying abortion as murder.

While several states have introduced ballot referendums to extend personhood rights to fetuses, voters have rejected them or the courts have ruled them unconstitutional.

Other federal and state laws, however, make provisions to prosecute people who injure fetuses. Several states have laws that prosecute mothers who use illegal drugs while pregnant, and the federal Unborn Victims of Violence Act makes it illegal to harm a fetus while killing or injuring the mother in a federal crime.

Bans on “partial birth” abortion

Bans on
Late-night host and comedian Samantha Bee explains “partial-birth” abortion in an episode of her show “Full Frontal.”
 “Full Frontal with Samantha Bee”/TBS

Twenty states currently ban what is termed “partial-birth” abortion, in which the fetus or fetal tissue is removed from the uterus, following a 2007 Supreme Court case that allowed bans on such procedures.

But doctors say the phrase “partial-birth” is misleading and inaccurate. “One can’t be partially born. In obstetrics, you are pregnant or you aren’t, and you are delivered or you are not,” Dr. Jennifer Gunter, an OBGYN and abortion provider, explained in the Huffington Post in 2016.

What lawmakers call “partial-birth” abortions are medically defined as dilation and evacuation (D&E), a surgical procedure used in late-term miscarriages and abortions to remove the fetal tissue as safely as possible. They account for less than 0.5% of all abortions.

Trump falsely claimed during the campaign that an OB-GYN can “rip the baby out of the womb of the mother just prior to the birth of the baby,” an assertion that caught fire among abortion opponents.

Getting the father’s approval

Getting the father's approval
Shannon Stapleton/Reuters

Lawmakers in Oklahoma advanced a bill in 2017 that would require the father’s permission for a woman to get an abortion. Non-invasive paternity tests are only available after eight weeks into pregnancy.

The bill, however, didn’t make it far. In the 1976 case Planned Parenthood of Central Missouri v. Danforth, the US Supreme Court ruled that requiring the permission of the fetus’ father or the spouse of someone seeking an abortion is unconstitutional.

In an interview with The Intercept in February 2017, the bill’s author, state Rep. Justin Humphrey, said he wanted to make sure men were included in women’s decisions to have abortions.

“I understand that [women] feel like that is their body. I feel like it is a separate — what I call them is, is you’re a ‘host.’ And you know when you enter into a relationship you’re going to be that host and so, you know, if you pre-know that then take all precautions and don’t get pregnant,” he said.

Cutting public funding

Cutting public funding
Nationwide, the number of abortion clinics has fallen from 839 in 2011 to 788 in 2014.
 Skye Gould/Business Insider

Since 1976, the Hyde Amendment has prohibited federal Medicaid funding from subsidizing abortions except in rare exceptions of rape, incest, or when the life of the mother is in danger.

Several individual states have since followed suit, with 32 prohibiting the use of state funding for abortions of low-income women on government assistance.

In May 2018, Trump announced a domestic “gag rule” that would prohibit family planning clinics who receive federal Title X funding from providing information about abortion or referrals out to clinics who provide abortions.

Title X gives grants to clinics so that low-income and uninsured patients can access family planning services they wouldn’t otherwise be able to afford.

Bans on abortion coverage in private insurance plans

Bans on abortion coverage in private insurance plans
Activists hold signs as they rally against abortion outside City Hall in Los Angeles, California September 29, 2015.
Mario Anzuoni/Reuters

Ten states currently ban private insurance companies from offering plans that include abortion coverage to any resident.

An additional 15 states ban a combination of state and federal employees, those who receive coverage through Medicaid, and/or those who purchase health plans through the exchanges created by the Affordable Care Act from purchasing plans that include abortion coverage.

Some of these states do make exceptions for incest, rape, and danger to the pregnant person’s life, and/or allow the purchase of abortion coverage at an additional cost.

Requiring waiting periods

Requiring waiting periods
Planned Parenthood supporters hold signs at a protest in downtown Denver, Colorado, on February 11, 2017.
REUTERS/Rick Wilking

Twenty-seven states require people seeking an abortion to undergo a 24- to 72-hour waiting period between receiving abortion counseling and actually undergoing the procedure.

Fourteen of those states mandate patients make two trips to a facility by requiring the counseling take place in-person before the waiting period begins.

2013 study from the Texas Policy Evaluation Project found that a third of women reported that the required counseling and multiple clinic visits “negatively affected their emotional well-being.”

The women surveyed traveled an average of 42 miles to get to a clinic, and spent an average of $146 to cover the additional transportation and childcare costs (59% of women who get abortions in the US are mothers already).

While advocates of these periods say they’re necessary for a patient to truly make an informed decision about terminating her pregnancy, research disputes that claim.

separate study published in 2012 that surveyed 5,100 women who had to undergo a waiting period and multiple trips to a clinic concluded: “In nearly nine out of 10 cases, women expressed high confidence in their abortion decision before they received any counseling; these women would likely not benefit from additional mandated counseling or delay.”

Doctor supervision

Doctor supervision
This Sept. 22, 2010 photo shows bottles of the abortion-inducing drug RU-486 in Des Moines, Iowa, which Planned Parenthood of the Heartland clinic doctors can remotely prescribe using a telemedicine terminal.
 AP Photo/Charlie Neibergall

Nineteen states require that for medication abortions — a safe and common method for first-trimester abortions — the doctor who prescribed the medication must be physically present while the patient takes it.

The FDA approved mifepristone for medication abortions in 2000. To terminate the pregnancy, the woman takes one pill, then another pill 24 to 48 hours later.

In states with this requirement, women have to have doctors watch them take both pills in person, adding an additional access barrier for those who live in rural areas.

Letting health care providers refuse

Letting health care providers refuse
Hundreds of abortion rights advocates rally in New York’s Times Square in response to the Supreme Court ruling in Planned Parenthood v. Casey affirming a restrictive Pennsylvania law requiring a 24-hour waiting period for abortion and parental notification for minors on June 29, 1992.
 AP Photo/Mark Lennihan

Forty-five states permit healthcare providers to refuse to provide abortion-related services, and forty-three allow individual healthcare institutions to deny them.

An additional 12 states let providers refuse to administer contraception, eight states let institutions refuse to provide contraception-related services, and six let pharmacy workers refuse to fill prescriptions related to contraception or abortion.

These laws can impose burdens on people seeking abortion-related services if their state allows anyone to deny them.

Some of these refusal laws came into the spotlight in June 2018, when a pharmacist in Arizona refused to fill a prescription for a drug to expel a fetus prescribed to a woman having an involuntary miscarriage. The pharmacist’s refusal to do so, based off his religious beliefs, is legal under Arizona law.

Mandated counseling

Mandated counseling
Pamphlets are on display inside the waiting room of the Planned Parenthood Golden Gate offices on March 29, 2004 in San Francisco, California.
 David Paul Morris/Getty Images

Thirty-five states require that patients receive medical counseling and be given certain information before undergoing an abortion procedure.

While most of these states provide largely accurate information about fetal development, gestational age, and potential risks, some require doctors to provide blatantly misleading or inaccurate information.

Thirteen states require doctors to inform patients of medically un-proven claims that fetuses can feel pain, six states mandate that patients be told personhood begins at conception, and three states provide false information that an abortion can be “reversed” with a pill during the procedure.

Four states provide misleading information on the link between abortion and later fertility, doctors in five states are required to tell patients the medically disproven claim that abortions increase the risk of breast cancer, and eight states exaggerate the connections between abortion and negative mental health symptoms.

Blocking physician assistants and advanced practice nurses from administering medication

Blocking physician assistants and advanced practice nurses from administering medication
Demonstrators support Dr. LeRoy Carhart, a physician best known for performing abortions late in pregnancy.
Debra Sweet/Flickr

Thirty-four states require that those who prescribe the drug mifepristone for non-surgical abortions preformed in the first trimester of pregnancy must be licensed physicians, despite the World Health Organization’s guidelines that physician’s assistants and advanced practice nurses can safely administer the drug as well.

These restrictions on who can administer medication abortion limit the ability to access such drugs, and abortion overall.

Ultrasound requirements

Ultrasound requirements
Dr. Bhavik Kumar, 31, listens to a question from a patient seeking an abortion during her ultrasound at the Whole Woman’s Health clinic in Fort Worth, Texas, on June 3, 2016.
 AP Photo/Jacquelyn Martin

Eleven US states require abortion providers to conduct ultrasounds on patients before undergoing an abortion, with nine of them mandating that patients be given the option to view the ultrasound image.

Three states — Louisiana, Texas, and Wisconsin — go as far to require that the provider show and describe the ultrasound image.

Numerous studies have shown that these requirements are largely ineffective, and don’t have much of an impact on patients considering abortion.

A researcher with the Texas Policy Evaluation Project, which conducted a 2013 study of 300 women who underwent the mandated ultrasounds and descriptions of the images, concluded that “women reported being equally confident about their decision after seeing the ultrasound and hearing its description.”

2014 study published in Obstetrics & Gynecology  that surveyed over 15,000 women who underwent an abortion found that 98% of those who looked at an ultrasound went on to terminate their pregnancies.

Exempting sex selection or disability

Exempting sex selection or disability
Protesters march in support of pro-life abortion legislation in front of the Federal Courthouse in San Diego, California, April 14, 2017.
 REUTERS/Sandy Huffaker

Eight states ban abortions based on the sex of the fetus, Arizona bans abortion based on race, and three states require counseling for perinatal hospice services if the fetus has a fatal abnormality.

In 2017, Ohio Gov. John Kasich signed a bill to outlaw abortions of fetuses diagnosed with Down syndrome.

But a federal judge granted an injunction against the law after the ACLU and other groups challenged it in court, ruling that it was unconstitutional on the grounds of the Fourteenth Amendment. A court struck down a similar measure passed in Indiana.

North Dakota’s ban on abortions of fetuses diagnosed with Downs syndrome is effectively un-enforceable, since the state’s one abortion clinic does not perform abortions after 16 weeks, according to USA Today.

While sex-based abortions of female fetuses are more commonplace in countries such as China and India, there is not substantial evidence that it occurs on a widespread basis in the United States. The sex of a fetus is not clearly discernible until between 16 and 20 weeks of pregnancy, and 95% of abortions take place before the 16-week mark, according to 2014 data.

Requiring abortion clinics to bury or cremate the remains of fetuses

Requiring abortion clinics to bury or cremate the remains of fetuses
Activists dressed as characters from “The Handmaid’s Tale” chant in the Texas Capitol Rotunda May 23, 2017 as they protest SB8, a bill that would require health care facilities to bury or cremate any fetal remains whether from abortion, miscarriage or stillbirth.
 AP Photo/Eric Gay

In the past few years, five states states have introduced and passed laws requiring that fetal remains resulting from abortions, miscarriages, or stillbirths be either cremated or buried, regardless of the patient’s wishes and largely at the patient’s expense.

The states that have imposed these laws have claimed they are necessary to preserve the “dignity” of the fetus, but abortion-rights advocates say they are simply another way of shaming and imposing additional burdens on women who choose abortion.

While North Carolina’s requirement is still intact, federal judges struck down both Texas’and Indiana’s attempts to enact such laws. The legality of similar measures passed in Louisiana and Arkansas are still being fought out in the courts, and are thus not being enforced.

“Regulations to require burial or cremation of fetal tissue further stigmatize abortion services and pregnancy loss, and may contradict the wishes of abortion patients,” Guttmacher said in 2018.

Trigger laws if Roe falls

Trigger laws if Roe falls
Trump has said he wants to appoint justices who would overturn Roe v. Wade.
 Alex Wong/Getty Images; Business Insider

If the Supreme Court even reverses itself and overturns Roe v. Wade, four states have trigger laws that would immediately make abortion illegal within their borders.

Ten states have their pre-Roe abortion bans still in effect that currently aren’t enforced, which would go into effect if Roe ever falls. On the flip side, seven states have laws that would keep abortion legal if the court strikes down Roe.

State funding for crisis pregnancy centers

State funding for crisis pregnancy centers
College Area Pregnancy Services (CAPS) is a crisis pregnancy center clinic in San Diego
 Gregory Bull/AP

Crisis pregnancy centers, or CPCs, are centers with the goal to dissuade pregnant women from seeking abortion. They are commonly affiliated with anti-abortion religious groups.

CPCs have come under scrutiny in recent years for masquerading as legitimate medical providers (some are licensed to administer sonograms or pregnancy tests but many are not) to provide false or misleading claims about abortion to unsuspecting patients seeking fact-based information about the practice.

A 2006 Congressional report found 87% of CPCs surveyed disseminated medically discredited claims that abortion is linked to breast cancer, mental illness, uterine damage, and infertility. Others have been reported to intentionally mislead women about abortion laws in their state or even how far along they are in their pregnancies.

Many CPCs even use confusing names and signage to trick patients into believing they are abortion clinics. Several have the word “choice” in their name, and some strategically locate themselves next to abortion clinics or park buses outside of them, offering free ultrasounds to lure women inside.

Partially thanks to about $60 million in federal funding combined with millions more in funding from states, CPCs have become widespread in America, outnumbering actual abortion clinics in many areas. Mississippi, for example, has 38 crisis pregnancy centers, one of which is located across the street from the state’s one remaining abortion clinic.

“Choose Life” license plates

Sen. Tommy Garrett of Bellevue holds a proposed Choose Life license plate design in his office in the Nebraska Capitol on Friday, March 18, 2016, in Lincoln, Neb. Garrett is seeking legislative approval to offer the plates through the Department of Motor Vehicles with a $5 fee that would go toward prenatal care. Twenty-nine other states offer similar plates.
 AP Photo/Anna Gronewold

One of the subtle ways states fund CPCs and other anti-abortion efforts are by selling specialized “choose life” license plates through their Department of Motor Vehicles, going for anywhere between $25 and $70.

Seventeen of the 32 states that offer such plates donate part of the proceeds to CPCs or other anti-abortion organizations, and 19 give proceeds to adoption agencies or adoption counseling services.

Ten states prohibit revenue from “choose life” plates from funding any organizations that offer abortion services, counseling, or referrals.

Some organizations have criticized states for the practice, arguing that the government cannot legally use taxpayer money to explicitly endorse certain political views over others. The matter has not yet been challenged in court.

Restrictions on Plan B

Restrictions on Plan B
Demonstrators rallying outside the Supreme Court in March 2014 as the court heard arguments in Sibelius v. Hobby Lobby, a case surrounding the rights of employers to deny employees contraception in health insurance plans over religious objections.
 Chip Somodevilla/Getty Images

Though not technically an abortion restriction because emergency contraception prevents sperm from fertilizing an egg, laws restricting access to Plan B and other forms of emergency contraception can keep women from choosing to get pregnant, too.

Plan B One-Step was approved by the FDA for over-the-counter purchase in 2013, and many states have chosen to expand access to emergency contraception, but others restrict access to the drug, which prevents fertilization when taken shortly after unprotected sex.

Nine states restrict access to emergency contraception, with six permitting pharmacists to refuse to dispense any contraceptives, and three allowing them to deny dispensing only emergency contraception.

Arkansas and North Carolina additionally do not include emergency contraception in their contraceptive coverage mandates, and Texas excludes contraception from its state family planning programs.

Laws around the protection of abortion clinics

Laws around the protection of abortion clinics
A Planned Parenthood clinic in north Dallas. The health center doesn’t provide abortions following a 2011 Texas law stripping funds for any provider that was affiliated with the practice.
 Rebecca Harrington/Business Insider

In many areas, abortion clinics are frequented by protestors outside who often intimidate and harass patients who try to enter, presenting a significant deterrent to patients as they enter and creating a general safety hazard.

Only 14 states have laws that protect patients and staff at clinics from being harassed and intimidated in this manner.

While 12 states prohibit blocking the entrance to a clinic, only six make it a crime to harass abortion providers or patients, three make vandalism and property damage of clinics illegal, and two prohibit harassing clinics by telephone.


Kavanaugh’s record of public statements and legal decisions on abortion rights is relatively thin.

Almost immediately after Justice Anthony Kennedy announced his retirement from the Supreme Court last month, attention turned to a divisive question: How would his replacement vote on abortion rights cases?

Brett Kavanaugh, a federal appeals court judge who was nominated by President Donald Trump on Monday to succeed Kennedy, is a solidly conservative jurist who, unlike Kennedy, would be unlikely to side with the court’s liberal wing on contentious social issues.

But Kavanaugh’s record of public comments and legal decisions on abortion rights is relatively thin.

That makes it difficult to say with certainty whether he would vote to overturn Roe v. Wade, the landmark 1973 ruling that established a constitutional right to abortion. At the same time, some of his statements provide a rough — if necessarily incomplete — sketch of his general views on the issue.

“My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law,” Kavanaugh said in his remarks from the East Room of the White House on Monday night. If confirmed, Kavanaugh — who paid tribute to his family in his speech, especially his two daughters — would be one of six men on the nine-justice court.


In his confirmation hearing in May 2006, Kavanaugh was asked by Sen. Chuck Schumer, D-N.Y., if he considered Roe v. Wade to be an “abomination.”

“If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court,” Kavanaugh said, referring to the legal principle of stare decisis. “It’s been decided by the Supreme Court.”

But when Schumer pressed Kavanaugh for his personal opinion of Roe, Kavanaugh did not directly answer, instead saying that the Supreme Court had upheld Roe “repeatedly” and that it would not be “appropriate” to share his own views.

In his time on the bench, Kavanaugh has not written or commented on abortion in any great detail. But last October, he took part in a high-profile court fight involving a pregnant undocumented teenager who wanted to obtain an abortion.

The appeals court ruled that the teenager could temporarily leave government custody for an abortion procedure. In his dissent, Kavanaugh said the Trump administration conceded that the teen had a right to an abortion, but he argued that the court was wrong to conclude she had the right to “an immediate abortion on demand.”

He said delaying the procedure until she could be released to a U.S. sponsor would not impose an undue burden on the abortion right — a position that some conservative activists have since criticized as insufficiently hard-line. (Karen LeCraft Henderson, one of Kavanaugh’s more conservative colleagues, wrote in a separate dissent that the teenager had no right to an abortion at all because she was not a citizen.)


Kennedy’s retirement set up what is likely to be a bitter political fight over abortion heading into the fall midterm elections.

Abortion rights advocates, who issued dire warnings after Kennedy announced his departure, blasted Kavanaugh’s nomination on Monday night.

“There’s no way to sugarcoat it,” said Dawn Laguens, the executive vice president of Planned Parenthood Federation of America. “With this nomination, the constitutional right to access safe, legal abortion in this country is on the line.”

“We already know how Brett Kavanaugh would rule on Roe v. Wade, because the president told us so,” Laguens said, referring to Trump’s promise during the 2016 presidential campaign to nominate “pro-life justices” whose votes would undo Roe “automatically.”

But opponents of abortion rights, many of whom saw Kennedy’s retirement as a once-in-a-generation chance to reshape the ideological thrust of the court, praised the nomination.

“We thank President Trump for delivering on his campaign promise by choosing another Gorsuch-like nominee,” said a statement from March for Life, a group that opposes abortion rights.

The political divide was on stark display outside the Supreme Court ahead of Trump’s announcement. Groups of people holding yellow “Abortion is Murder” signs stood next to others holding signs like “Protect Roe/Don’t criminalize abortion” and “Civil rights are on the line.”


A country without legal abortion is not a country without abortion. It’s just a country in which more women die.’

The history of women in America before Roe v. Wade is a history of blood.

When Caroline had an abortion in 1963, she went alone to a “ramshackle little house” in a disreputable neighborhood of Youngstown, Ohio. Later, in her college dormitory, she labored for twelve hours, alone, and began to bleed uncontrollably. “There was more blood than I ever imagined,” she told the Cut. When, at last, she overcame her fear of seeing a doctor for the aftereffects of the abortion, she was told her life had been at risk.

A reader of Ms. recalled his mother telling him that, after an illegal abortion in her teens, she bled so profusely that her boyfriend at the time collected newspapers for her to sit on, as she waited out the pain in a hotel room, unable to seek medical care without facing potential criminal charges.

In 2018, after decades of erosion, the last levee protecting reproductive rights in the U.S. seems poised to break. The impending retirement of Anthony Kennedy, and his imminent replacement with a Trump-appointed Supreme Court judge, seems to portend the end of Roe v. Wade, which struck down anti-abortion laws in forty-six states and the District of Columbia in 1973.

The United States government, seeking to restrict women’s reproductive rights, is bucking a global trend, as countries that have criminalized abortion for decades begin to ease their stringent laws in the face of determined feminist outcry.

Just two months ago, across the Atlantic, women all over Ireland rose up in celebration of a hard-won victory: By an overwhelming margin, the country’s 3.2 million registered voters supported a referendum to overturn a 1983 constitutional amendment that effectively outlawed abortion. From as far away as Sydney andTokyo and Los Angeles, members of the Irish diaspora returned home to vote on May 25 in favor of a woman’s right to choose, detailing their journeys on social media. The voters, arriving to the whoops of supportive crowds, served as a direct parallel to the women who for decades took lonely journeys out of their home country to get abortions.

“We have voted to provide compassion where there was once a cold shoulder, and to offer medical care where once we turned a blind eye,” Ireland’s prime minister, Leo Varadkar, said in a speech the morning the results were announced.

Last month, in Argentina, a bill to decriminalize abortion narrowly passed the lower chamber of that nation’s Congress, and is currently under debate in the Argentinian Senate. The decriminalization campaign was driven by a multiyear wave of feminist activism, in a movement entitled “Ni Una Menos (Not One Less),” that has demanded a stop to the needless deaths of women at the hands of male partners and as a result of unsafe illegal abortions. Argentina’s vote comes just under a year after Chile voted to reverseits absolute prohibition on abortion, despite vehement opposition from Catholic groups in that country.

In Argentina, jubilant crowds of women in city squares celebrated the passage of the decriminalization bill, wearing the signature green bandanas of Argentina’s abortion rights movement; in Ireland, videos of women weeping with joy at the referendum’s outcome flooded social networks.

Here in the United States, the mood among women’s rights advocates is justly somber. With more than 60 percent of the public indicating, in recent polls, that they wish to see the decision remain intact, the coalition in charge of the government seems to be salivating to fully strip women of access to abortion, at which a series of increasingly restrictive state laws has already chipped away. The legal groundwork for a challenge to Roe is already being laid. In Iowa, Louisiana, and Mississippi, state legislatures have advanced strict limits on abortion that could wind up being the instruments in a Supreme Court case — one decided by a conservative majority.

This prospect is the fulfillment of an official promise by the administration. In February, Vice President Mike Pence told the Susan B. Anthony List & Life Issues Institute, an anti-abortion group, that a change to “the center of American law” would happen “in our time.” Now it’s July, and that time seems near at hand.

But a change in the law is only that. It doesn’t change human nature —  or desire, or love, or desperation, or disease, or loss.

There are as many ways to get pregnant as there are to have sex: in bliss, in recklessness, in despair, in traumatic circumstances. The end of legal abortion in states across the country won’t end rape or domestic abuse; it won’t create more money in families’ budgets for more children; it won’t make birth control more effective or affordable. The end of legal abortion doesn’t mean the end of the consumption of alcohol or drugs; it doesn’t mean the end of heated trysts on stairways and in offices and parking lots and narrow, overheated bedrooms. There were extramarital affairs before 1973 and there will be extramarital affairs after Roe is overturned. The end of legal abortion is merely the end of legal abortion. It won’t change the number of wombs yearly inseminated in this country.

But when Roe is overturned, more women will die.

There will be unwanted pregnancies carried to term with severe complications or postpartum infections. There will be knitting needles and coat hangers and off-label pills. There will be secret decisions, with a bank balance open and a tear in the heart; there will be fledgling careers to preserve, marriages to save, traumas to expunge. There will be herbs, forceful massage, a sudden fall down a flight of stairs. And some of the women who do what they feel they must will die. Every year, across the world, nearly 70,000women die as a result of complications from unsafe abortions. A country without legal abortion is not a country without abortion. It’s just a country in which more women die.

To know this is to know that what we face is a long walk into the dark, in the cynical, silencing, hideous, hypocritical name of the “sanctity of life.”

And the true cruelty of such laws becomes more clear when you know — as we know, because history is open to us such as it never has been before, a few taps of a keyboard away — that such laws always, always, always spare the wealthy.

There are planes to different states, just a few hundred dollars away. There are other countries with sterile, friendly clinics for the right man’s mistress, the right man’s wife, the right man’s daughter. There will be salvation, for those who can afford it, in the guise of a well-timed vacation to Europe or Canada.

For millions of American women, Roe v. Wade has already been functionally overturned. More than 400 state laws have been passed to restrict abortion since 2010, when a wave of conservative legislators and governors took power. The theoretical existence of a right means little to those who have no ability to act upon it —  those who lack the financial ability or personal flexibility to travel long distances to receive access to abortion care. There is one abortion clinic in the state of Mississippi, for a population of almost 3 million. Mississippi has one of the highest pregnancy-related mortality rates in the United States, and it is rising.

What’s more: Every law in the United States is enforced unevenly across racial lines. Anti-abortion laws won’t buck that trend. What woman is punished and what woman goes free; what woman lives, what woman dies; what woman can feed her children and what woman cannot — in America, little about these answers is incidental.

It’s difficult to know all this without feeling pure doom; difficult to look at your belly and know that its flesh will be beyond your control, that the soft, yielding, and familiar terrain of your own body will be bound by laws made by men who know their actions might cause you to die, and who do not care.

But all along the long, dark walk we face, there will be those who risk everything to help, in the tradition of those who have battled unjust governance throughout history. There will be women who fight in the streets and in the courts and in state legislatures. There are already networks of abortion funds, some hyper-local, some national, that finance the secret trips and the stays in the motels and the bus tickets and the plane tickets and the journeys home. There are open purses ready to pay the price for a woman not to have a child if she doesn’t want to. There will be women who swap abortifacient recipes; there will be, as there were before Roe, midwives and chiropractors and family doctors who will perform the procedure nearly a quarter of American women have already experienced, in secret, and under legal threat. Perhaps there will be a revival of the secret feminist network that provided underground abortions to the women of Chicago: All you had to do was pick up the phone, dial a certain numberand ask for Jane.

In time, and after many deaths, and irreversible losses; after blood, and pain, and shame, and careers prematurely ended, and women killed for getting pregnant, and women dying in childbirth, the ban — like Ireland’s and Chile’s — will be lifted. Any path to legislative reversal on the subject will be paved with women’s bodies. We know this. The “sanctity of life” touted by opponents of abortion is extended to an embryo but not to the woman who carries it. And that’s why, despite the seeming inevitability of a federal ban on abortion, women and the men who fuck them and love them will fight to the end; and if and when such a ban is imposed, we will claw our way out of that darkness, until we walk in free bodies again.


South Carolina Gov. Henry McMaster announces he is vetoing $16 million from the state budget because part of the money goes to Planned Parenthood at a news conference Friday, July 6, 2018, in Columbia, S.C. McMaster made a campaign promise no taxpayer money would go to any group that performs abortions. (AP Photo/Jeffrey Collins)

South Carolina Gov. Henry McMaster removed $16 million for health care from the state budget, saying Friday he wanted to make sure no taxpayer money goes to abortion providers.

The Republican governor said he was keeping a promise he made repeatedly as he campaigns for a full term, disagreeing with Democrats and some Republicans who said Planned Parenthood gets less than $100,000 of the money and all of it goes for family planning and not abortion.

“I have stated many times I am opposed to what Planned Parenthood is doing. And the veto I have is the most direct way,” McMaster said in a news conference after issuing 42 vetoes worth about $36 million from South Carolina’s $8 billion spending plan.

Planned Parenthood said the veto is a “political stunt” and the practical effect will be to remove birth control, testing for sexually transmitted diseases and even cancer screenings for hundreds of thousands of poor women on Medicaid.

“It’s clear that the governor is singularly focused on his election bid in November and that is at the expense of South Carolina women. The veto does not ‘defund’ Planned Parenthood, but it will ensure that South Carolinians who use Medicaid as their primary insurance will be unable to access affordable, basic health care,” Planned Parenthood spokeswoman Vicki Ringer said in a statement.

Republicans have been fighting over the “Family Planning” line in the budget for months. McMaster did not veto the entire $34 million in the item, with his office saying eliminating all that money would keep 700,000 women and children from getting prescriptions through Medicaid.

Democrats and some Republicans — even those adamantly against abortions — called removing the money from the budget shortsighted since so little goes to Planned Parenthood in the first place and removing it from the spending plan could mean less money for things like law enforcement or help for families with children with autism.

“You are voting for a budget with an illusion at the expense of a reality,” said Rep. Kirkman Finlay, R-Columbia, during last month’s debate.

McMaster said he would prefer if the federal government approves his request for a waiver that would allow South Carolina to withhold any public funds from Planned Parenthood, but his office does not know when that might be considered.

Some Republicans threatened to toss out the entire budget because the money remained after a conference committee vote — the House took it out, while the Senate put it back in. But legislators at the time pointed out it will take a two-thirds vote to override the veto. In the Senate 12 Republicans would have to join the 18 Democrats and in the House, 40 Republicans would have to join 44 Democrats if everyone is present to put the money back in the budget.

“I’m sure they should be sustained,” McMaster said of his vetoes. “Whether they will be is another question.” McMaster said.

Legislative leaders said they were reviewing the vetoes and had not decided when or if they would return to Columbia to consider them.

The governor issued a number of other vetoes, including removing a provision put in the budget that would give priority for foster parents to adopt children away from their biological parents after nine months. McMaster said that kind of abrupt and major policy change should be made through the legislative process and not in the budget.

McMaster also struck out of the budget a line that removed from public view in the spending plan more than $3 billion that colleges and universities collect through fees, grants, athletic ticket sales and other revenue streams. The governor said that money needed to stay in the appropriation process for the benefit of the public and policy makers.


“Massive numbers of women resisted the law”: a historian on life before Roe.

News that Justice Anthony Kennedy will soon retire from the Supreme Court was met with mourning from supporters of reproductive rights and the dignity of women more generally. Should President Donald Trump successfully appoint a conservative judge, the majority of justices will likely favor the recriminalization of abortion at some point when the Court resumes again.

I’m a historian who studies the history of reproductive rights in the US. To envision what our future holds should Roe v. Wade be successfully overturned is not hard — we only need to look to the decades before the nationwide legalization of abortion to get a sense for how the status of women could radically change.

The first thing to know about life when abortion was still a criminal act is that massive numbers of women resisted the law. In the 1950s and ’60s, just before the Roe v. Wade decision in 1973, medical and law enforcement experts estimated that between 1 and 2 million girls and women every year had secret abortions. Women resisted because they decided they were too poor, too young, too alone, or too vulnerable to have a baby. They also resisted because they simply didn’t want the pregnancy.

We think of the criminal era as a time when getting an abortion meant a furtive trip into the back alley, where, as likely as not, an unskilled person — maybe a drugstore owner or beautician or medical quack — would sexually assault, maim, or even negligently kill a desperate woman. But public health records do not bear this out.

Of course, some women suffered greatly — but most women lived in cities and towns where they had a decent chance of finding competent doctors, midwives, chiropractors, and others who did abortions outside of the law. Many performed this procedure day in and day out, often with the full knowledge of police who understood the public health benefits of having a decent provider in town.

But debunking the “back-alley” myth doesn’t mean the criminal era was not profoundly harmful to women. The social and economic impacts of making abortion illegal cannot be overstated. In those decades before Roe v. Wade, roughly from the mid-19th century until the early 1970s, women could not be full citizens. If they had heterosexual sex, they could not reliably plan their education or their work lives. Many women did not know where to find help, were too ashamed or afraid to ask, had no money, or were scared off by stories of the back alley. Many attempted self-abortion.

Employers and school officials drew on these vulnerabilities to treat females as unreliable employees who deserved lower pay. Given the likelihood that women would have children and drop out of the workplace, men argued that women had limited use for education. Girls were steered away from career tracks and advanced study and pushed toward preparation for “women’s” work, including low-skill office jobs and domestic labor.

Employers expected women workers, who might (it was thought) become pregnant at any time, to be only suited for jobs with fewer responsibilities that could allow them to cycle in and out without unduly disrupting the workplace. Unexpected and unwanted pregnancies robbed women of personal opportunities, economic security, and civic independence.

When district attorneys and police departments periodically decided to mount crusades of moral purity against “vice,” thousands of women were hauled into courtrooms and forced to testify against practitioners who had helped them and were now being tried for performing abortions.

Newspapers covered these public spectacles, where women in court would be pressed to answer such questions as “How many men did you have sex with?” and “Why did you have sex if you weren’t willing to have a baby?” and “During the abortion, how far apart were your legs spread and what tools were put into which of the holes in your body?”

Many hospitals set up “abortion boards,” where women went to beg panels of male physicians to allow them to terminate a pregnancy, which was only possible if granted an exception due to extraordinary circumstances. Many of these women had to plead insanity or say their pregnancy was causing them to consider suicide — two of the few permissible justifications for obtaining permission. Public humiliations like these were common in the pre-Roe era.

Without the right to choose, women were subordinate citizens

In the decades before Roe, authorities took upon themselves the right to punish girls and women for not managing their sexuality and fertility in ways the government approved — and the punishments and social control varied by race. Authorities forced hundreds of thousands of unmarried, unwillingly pregnant white woman to give up their babies for adoption; meanwhile, poor women of color were evicted from public housing, lost their welfare benefits, and, in some states, were threatened with jail if they had another baby outside of wedlock.

Women were forced to reproduce under a regime that dictated moral, racial, and religious rules for them, thus denying them moral autonomy, a political voice, and true religious liberty.

Most fundamentally, the government mandated forced maternity and defined women first and foremost as mothers. When women could not manage their reproductive capacity —even contraception was not legal in all states until 1965 — women’s special subordination to government and specifically to men on whom women were dependent for economic support, for employment, and other resources shaped every aspect of women’s intimate familial and socio-political lives.

Eventually, a critical mass of women rebelled against this regime as too dangerous and demeaning to be tolerated. The movement for reproductive freedom was a movement for full citizenship status for women.

Today’s technological advancements will provide alternatives to the back alley and other degradations of the pre-Roe era, although women with economic resources will continue to have more options and access than others. As before, though, women will be forced to flout the law to achieve personal dignity and safety. Such treatment of women ought to be an intolerable idea in a modern democracy.

Rickie Solinger is a historian and the author of many books about reproductive politics, includingWake Up Little Susie: Single Pregnancy and Race before Roe v. Wade; The Abortionist: A Woman Against the Law; and Reproductive Justice: An Introduction, with Loretta Ross.


With the courts refusing to curb the deception coming from fake health centers, it’s more important than ever that advocates loudly and unapologetically share the truth about abortion care, independent clinics, and the human right to health care.

Last week, reproductive rights in the United States were dealt two potentially catastrophic blows: the U.S. Supreme Court granted fake health centers the freedom to deceive people seeking reproductive health care, and Justice Anthony Kennedy announced his retirement from the court. Because Kennedy was considered the critical “swing” vote when it came to preserving the right to abortion care in this country, the announcement prompted advocates to start thinking about what they will do if (or when) Roe v. Wade is overturned.

But Roe doesn’t need to be on the cusp of extinction for us to have to grapple with this question. As many have noted, the constitutional right to abortion is already functionally out of reach for many in this country, and states have been chipping away at access to abortion care for decades. The NIFLA v. Becerra decision simply represents one more obstacle in the way of those seeking reproductive health care.

Independent abortion care providers—and their patients—have been navigating those obstacles for decades, and this decision could be disastrous for both. As someone who works on behalf of such providers, it is clear to me just how dangerous silence and misinformation about abortion can be. It keeps people from getting the care they need, when they need it, regardless of the decision they are making about pregnancy. And with the courts refusing to curb the deception coming from fake health centers, it’s more important than ever that advocates loudly and unapologetically share the truth about abortion care, independent clinics, and the human right to health care.

So here are just a few points of clarity about these issues to set the record straight.

Which clinics actually have the right to free speech?

At the heart of the NIFLA v. Becerra case was whether fake women’s health centers in California could be required to post notices letting clients know whether they are a medically licensed facility and about their right to affordable, low-cost reproductive health services. In a perverse defense of “freedom of speech,” the Supreme Court ruled that such transparency is not required.

Fake women’s health centers lure pregnant patients through their doors, where they use deception and shame to delay or push prenatal and abortion care entirely out of reach. Allowing fake women’s health centers to mislead those seeking pregnancy-related care—while politicians continue to undermine and punish legitimate providers—is medically irresponsible.

Of course, none of this exists in a vacuum. While the Supreme Court has given fake clinics the right to lie, there are currently a number of states that legally require medical providers to misinform patients about abortion. At least 20 states require providers to give patients medically inaccurate information as part of the abortion care counseling process—including misinformation about breast cancer, mental health, fertility, and the false claim that an abortion can be “reversed” (a myth that we at Abortion Care Network called out using billboards in California). These “scripting laws” have no medical benefit for patients—with inaccurate information, how could they? Instead, scripting laws are a way for anti-abortion politicians to interfere in the provider-patient relationship by forcing providers to stigmatize abortion and undermine their own medical expertise.

Unfortunately, the NIFLA v Becerra decision does not end the practice of forcing legitimate health-care providers to lie to their patients. Why? Because Justice Clarence Thomas made it clear in his opinion that real abortion clinics and fake health centers are held to different standards. According to David S. Cohen, a law professor at Drexel University, “Thomas wrote that speech incidental to a medical procedure is different than speech that’s just speech—the government can freely regulate the former, but not the latter. In other words, fake clinics have real free speech rights [because they don’t provide real medical care] while real clinics have fake free speech rights,” Cohen told me in an email.

That doesn’t mean clinics won’t fight back. Abortion care providers are motivated by a deep respect for their patients’ dignity and autonomy, and that means they have a genuine interest in ensuring that patients receive unbiased, medically accurate information. “It’s going to be really hard to challenge these laws as a form of compelled speech, but they can still be challenged in other ways,” explained Cohen. “Planned Parenthood v. Casey says that these informed consent laws have to give ‘truthful, non-misleading information,’ so clinics can still challenge them in that way.” While legal challenges may be tough with the shift in the Supreme Court, abortion rights advocates are even tougher: In the last month alone, we’ve seen abortion care providers challenging long-established restrictions in TexasIndiana, and Virginia.

Independent clinics and their patients suffer the most.

We also know that independent abortion care providers and their patients are particularly vulnerable to fake clinics, because fake clinics rely on misleading information—including mimicking the names of community-based clinics—to get clients through their doors. To a degree, they are able to do this because independent clinics often lack highly visible branding and ubiquitous name recognition. While every provider of reproductive health care is under fire right now, independent clinics—which typically funnel every cent into patient care and can rarely afford communications, outreach, fundraising, or organizing staff—are left with few defenses.

It’s important that people connect with, learn about, and tell others about the independent clinics in their communities. Fake clinics can’t trick people into walking through their doors if everyone in the community knows about their local independent clinic.

It’s about more than abortion.

Abortion advocates have been trying to raise awareness about fake clinics for years, and the anti-abortion organizations that fund and operate fake clinics are open about their opposition to abortion. One of the most dangerous tactics fake clinics use is forcing patients to delay care until it’s too late—either by luring them away from appointments at legitimate clinics, or by giving them incorrect information about their pregnancies so that they are pushed beyond the window of time when they can legally access abortion care.

But fake health centers—and the legislators seeking to cut funds to real clinics—endanger the health and safety of folks seeking any reproductive health care at all, including birth control, prenatal care, and abortion. Research suggests that plenty of the patients walking through the doors of fake clinics intend to continue their pregnancies. And yet these unlicensed facilities, which claim to care about women and babies, are performing ultrasounds and giving patients inaccurate results that can result in heartbreak and loss for those with wanted pregnancies.

Our country is in the midst of a maternal mortality crisis, and that crisis disproportionately affects women of color and poor women—the very people these fake clinics target. If we are to take maternal and child health seriously, we must demand better of any center that claims to serve pregnant clients.

When it comes to exposing fake health centers, we tend to shout about the threat to abortion access because abortion care is already stigmatized and isolated, accurate information is already so difficult to find, and abortion care is currently unaffordable for many. But we know that people who have abortions and people who have children are the same people at different points in their lives—and that everyone needs accurate information and health care they can trust, no matter what decision they make about pregnancy.

It’s time to expose these fake clinics for what they are. And if the courts won’t hold them accountable, those of us who care about reproductive health, rights, and justice must.


His decision to retire could lead to more “incremental” attacks against the landmark decision.

Supreme Court Justices Anthony Kennedy and Stephen Breyer await a hearing on Capitol Hill.
 Win McNamee/Getty Images

Supreme Court Justice Anthony Kennedy’s retirement announcement has spurred a raft of questions about how key legal precedents could shift under the tenure of a likely more conservative replacement — and chief among these is the fate of Roe v. Wade.

The landmark 1973 case that guaranteed women’s legal right to an abortion has been on conservatives’ target list for some time, and although Kennedy was appointed by a Republican president, he frequently sided with the liberal wing of the court and acted as a swing vote on cases preserving abortion rights.

In 1992, Kennedy was the deciding vote in Planned Parenthood v. Casey, the decision widely considered to “save” Roe v. Wade. More recently, he also voted with the majority against regulations designed to shut Texas abortion clinics down.

As Vox’s Dylan Matthews writes, Kennedy’s departure gives anti-abortion activists a potential opening to further chip away at these protections — even if the likelihood of a wholesale overturning of Roe remains slim.

Here’s what 10 legal experts had to say about what Kennedy’s retirement could mean for the future of abortion rights.

The loss of Kennedy’s swing vote is likely to further endanger Roe — but the onslaught is expected to be “incremental”

Gillian Metzger, professor, Columbia Law School

I expect that Justice Kennedy’s departure likely will impact the status of Roe and Casey, though I don’t expect the Court to overturn Roe immediately.

Instead, I expect we’ll see more incremental pullback, at least initially. But in practice it will become even more difficult, and in some states practically impossible, for women to exercise the right recognized in Roe and Casey of making the ultimate choice of whether or not to bear a child.

Mary Ziegler, professor, Florida State University Law School

The most recent abortion case strengthened abortion rights, and there has been no groundwork laid for a decision reversing Roe tomorrow. Roberts and Alito have never written an opinion saying Roe should go.

So I think that it is more likely that we will see a more subtle or gradual attack on Roe — a series of cases chipping away at legal abortion. Or an effort to establish that almost no abortion regulations (or literally no abortion regulations) create an undue burden — the standard now used to measure the constitutionality of abortion restrictions.

Carol Sanger, professor, Columbia Law School

Assuming as I think we safely can, that Justice Kennedy is replaced by someone who opposes legal abortion, his retirement is likely to impact the existing constitutional right of women to choose abortion in cases of unwanted pregnancies not so much because it will bring about the immediate reversal of Roe v. Wade but, because it makes it more likely that the Supreme Court will give the states more room to decide what regulatory constraints on abortion are valid.

Pending court cases could be used to accelerate attacks on abortion rights

David Cohen, professor, Drexel University Law School

The Supreme Court could use any of dozens of cases already pending in federal court as the vehicle to revisit abortion rights under the Constitution.

[These cases] are already in the federal courts and could get appealed to the Supreme Court. If a Court with a new fifth conservative Justice takes one of these cases, it could decide that abortion is no longer a protected right, which would overturn Roe.

Maya Manian, professor, University of San Francisco Law School

There are several cases already pending in federal appeals courts challenging state laws banning the most common type of second trimester abortion (dilation and evacuation) — one of those could be the vehicle for overturning Roe especially if a federal appeals court ruling upholding such an abortion ban results in a circuit split. (A common reason for the Supreme Court to accept a case is a disagreement among the federal appeals courts known as a circuit split.)

Gillian Metzger

This incremental pullback may begin with sustaining some lower courts that are taking positions seemingly at odds with the Supreme Court’s 2016 decision in Whole Women’s Health v. Hellerstedt. Whole Women’s Health, for which Kennedy provided a fifth vote, curtailed the ability of states to limit access to abortion through ostensible health regulations that did not actually produce health benefits.

States are continuously passing new laws; for example, limiting access to medication abortion and dramatically limiting the window of time in which women can obtain abortions. If sustained, as might well happen, these restrictions will as a practical matter close off abortion access in many areas of the country.

Mark Kende, professor, Drake Law School

I think that there is a strong possibility that the Supreme Court will gradually chip away at Roeand Casey by upholding various state restrictions that it might not uphold were Kennedy on the Court.

Specifically, the Court could easily use the undue burden test to start concluding there is no undue burden in cases where Kennedy might have viewed things differently. Over time, that would then enable the Court to approach the more fundamental question about whether there is a constitutional right to abortion at all, except perhaps in the rarest of cases.

Certainly the Iowa legislature has passed laws that could test the Court, if the Iowa litigation reaches the Court for a decision. Of course, there is restrictive legislation from other states as well that the Court could focus on.

About that Jeffrey Toobin prediction

(CNN legal analyst Jeffrey Toobin has posited that abortion will be illegal in 20 states within 18 months, in the wake of Kennedy’s retirement.)

Mary Ziegler

I certainly think that it’s possible that abortion will be illegal in 20 states in 18 months. There are laws out there (like Iowa’s heartbeat ban at the sixth week of pregnancy) that could trigger an immediate challenge to Roe and a ruling undoing abortion rights. And we will likely see state legislators passing even more aggressive laws now that Kennedy is gone (like a complete abortion ban).

Kimberly Mutcherson, vice dean, Rutgers University Law School

It sounds alarmist, but it might actually be a conservative estimate. A decision that the Constitution does not protect a right to an abortion means that the issue will be dealt with on a state-by-state basis, not that abortion will immediately become illegal across the US.

Since 1992, there have been literally hundreds of proposed and passed state laws intended to make getting an abortion increasingly difficult, if not wholly impossible. Many state legislators will eagerly offer bills to make abortion illegal in their states the second that Roe falls. We can expect people to actually act preemptively and pass laws that will go into effect when the newly constituted Court overturns Roe (no doubt with strong dissents from Ginsburg, Sotomayor, and Kagan).

Dwight Duncan, professor, University of Massachusetts Law School

As to Jeffrey Toobin’s prediction that abortion will be illegal in 20 states in 18 months, count me skeptical.

That would require that the newly appointed justice be quickly confirmed, that she or he be ready to vote to overturn Roe in an appropriate case, and that the four conservatives be ready to join in — a proposition by no means certain, particularly as to Justices Roberts, Gorsuch, and Alito. It would also require that the state vote to criminalize abortion, and the state supreme court would have to declare the prohibition constitutional on state constitutional grounds.

All eyes are on Chief Justice Roberts — and the Senate

Mark Kende

I am not sure how Chief Justice Roberts would vote if the fundamental question of the constitutionality of abortion came before him given his strong concerns about stare decisis, his surprising decision not to overturn the individual mandate in the Affordable Care Act case (showing an institutional focus in my view), and related concerns over whether the Court would be perceived as purely political with a reversal of Roe. But clearly Roe is in danger.

Doug Linder, professor, University of Missouri-Kansas City Law School

Pro-choice advocates can hope for one of two things. They can first hope either Sen. Susan Collins or Sen. Lisa Murkowski are sufficiently concerned about overruling Roe that they either join with Democrats in delaying a vote until after the election or vote against a nominee who appears certain to overrule Roe when given the chance. Or, second, they can hope that Chief Justice Roberts meant what he said in his confirmation hearing about giving great weight to precedent.

(They can also, I suppose, hope that God hits one of the four conservative justices with a bolt of lightning sometime before the Court gets around to doing Roe in.)

Robert Nagel, professor, University of Colorado Law School

It is highly unlikely that replacing Justice Kennedy will result in an overruling of Roe. None of the highly controversial “landmark” decisions of the Warren Court — not Brown, not Miranda, not Baker v. Carr — have been overruled despite the fact that Republican appointees have had a numerical majority on the Court for almost all of the past four and a half decades.

There are many reasons for this, but the main reason is that conservative jurists tend to equate the Court’s political standing — its prestige and legitimacy — with the rule of law itself.

To put it bluntly, they tend to care more about protecting the Court as an institution than about enforcing the Constitution itself. Anyone who doubts this should look at the overall records of the Burger, Rehnquist, and Roberts Courts or just re-read the Casey decision, where three Republican appointees authored a hysterically frightened opinion about the need to protect the Court’s prestige even if that means condemning as deeply illegitimate political pressures to overrule Roe v. Wade.