Democratic Party politicians, the left-wing media, and abortion activists everywhere are in a panic. The leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health has the whole country imagining America without Roe v. Wade. To cut through the media hype and present just the facts, Liberty Nation dives deep into the state laws in the 27 states that either already have restrictions set to trigger upon the demise of Roe or seem likely to pass them soon.
Each of the previous installments in this four-part series examined seven states, progressing alphabetically. Part I covers Alabama through Indiana, Part II addresses Kentucky through Montana, and Part III included Nebraska through South Dakota. This segment wraps up the series by examining the final six states.
Planned Parenthood in Tennessee currently offers abortion pills up to the 11th week after the start of the last menstrual period (LMP) and in-clinic surgical procedures up to 19 weeks and six days. Currently enforceable state law allows elective surgical abortion up to the point of viability, with the only exception beyond that point being to save the life of the mother.
There are, however, trigger laws just waiting for Roe to disappear. According to the latest and most strict, which takes effect a month after the state receives notice that Roe is no longer in place, elective abortions would be criminalized from the point of fertilization. The pregnant woman wouldn’t be charged, just the practitioner, and an exception remains to save the life of the woman. Additionally, after some state courts ruled that privacy guarantees in state constitutions extend to abortions, a 52% majority of Tennessee voters amended their own constitution in 2014 to explicitly state there is no constitutional right to abort implied in any part of it.
In some ways, Texas is the state where it all began. It was the 1961 Texas abortion statutes that were ruled unconstitutional in the Roe v. Wade decision nearly 50 years ago, and though the specific case that seems likely to end Roe’s precedent directly examines a Mississippi law, it was the modern Texas heartbeat bill that went through the courts first and inspired the newest laws in Mississippi and so many other states on this list.
Under the law in the Lone Star State in 1970, which is when the Roe suit was actually filed in Dallas, anyone procuring an abortion for a woman faced a possible prison sentence of no less than two years and no more than five – and if the mother died during an illegal procedure, it was considered murder on the part of the practitioner. There was an exception to save the life of the mother, which Justice Harry Blackmun took issue with in Footnote 54 of the Roe opinion.
The current law in Texas, which took effect September 1, 2021 and managed to survive judicial challenges with only temporary setbacks, prohibits any abortion other than to save the life of the mother after a fetal heartbeat is detectable, which could be as early as six weeks. Before this, abortions were allowed up to 20 weeks post-fertilization. Should Roe be overturned, however, it would not be at all surprising to see a new bill banning abortion from the point of conception.
Abortions are only allowed beyond the point of viability in Utah in cases of life endangerment, severely compromised health, rape, incest, or lethal fetal anomaly. Utah’s trigger law, however, states that life begins at embryonic implantation, rendering all abortions illegal outside of cases of rape, incest, or a health emergency that threatens the life of the mother. Republican legislators in the state aren’t done though. Options currently being discussed include banning pharmaceuticals for medical abortions and eliminating the current exceptions for rape and incest. Governor Spencer Cox, however, recently told The Salt Lake Tribune that he is opposed to further restricting abortion beyond the state’s current trigger law.
At the time of Roe, West Virginia remained under a law passed in the 19th century that criminalized abortion as a felony, punishable by up to ten years in prison. Should the woman die during the abortion procedure, the practitioner would then be charged with murder. The only exception to the rule was ending pregnancies to save the life of either the mother or the child. A 2015 law, however, replaced the total ban with a 20-week limit. Later, in 2018, West Virginia voters approved a constitutional amendment clarifying that “nothing in the Constitution of West Virginia secures or protects a right to abortion.” While there is not trigger law per se, the state legislature has a history of bipartisan support for abortion restrictions, and once Roe is no longer in the way, many believe an update to the statute will soon follow.
Governor Jim Justice signed West Virginia’s newest abortion restriction into law in March. The Unborn Child with Down Syndrome Protection and Education Act would prohibit patients from terminating a pregnancy based on the possibility that the fetus may develop a disability.
In 1849, Wisconsin passed a law making any abortion other than to preserve the health of the mother a Class H felony, punishable by up to six years in prison. If the child is “quick,” meaning developed enough to move in the womb, the felony escalates to Class E and the maximum sentence increases to ten years.
Roe rendered this unenforceable in 1973, and the state never replaced it. Now that the fateful decision apparently teeters on the precipice, pro-abortion activists are in a panic. Governor Tony Evers, a Democrat, supports repealing the law, but with a Republican majority in the state legislature – it’s 21-12 in the Senate and 61-38 in the Assembly – he’s powerless to do so. Indeed, with a 2/3 super majority in each chamber able to override a veto, the GOP is just one Senate and five in the Assembly away from rendering the governor powerless in the legislative process. As it stands, Evers vetoed five abortion restricting bills last year. Attorney General Josh Kaul, another Democrat, said he wouldn’t enforce the old law, but he can’t stop local officials should they choose to ignore his pleas. Both AG and governor are up for re-election and face strong challenges from Republicans now campaigning on the aftermath of Roe.
At present, elective abortion is protected up to the 21st week of pregnancy. However, because of the chaotic political landscape in the state at the moment, if Roe is overruled, it’s unclear just what will be enforced in the state, if it will even be uniform throughout the state, and for how long.
Abortions past viability that aren’t necessary to preserve the life or health of the pregnant woman are forbidden in Wyoming, but the state’s recent trigger law would restrict that more should Roe be eliminated. The new law would ban any abortion outside of those necessary to save the life of the pregnant woman or prevent “serious risk of death or of substantial and irreversible physical impairment of a major bodily function,” or if the pregnancy resulted from rape or incest.
Thus concludes the in-depth look at the laws in each of the states keeping abortion advocates up at night. To distill the findings into a more manageable bite, here’s a summary of the stats. Of the 27 states examined:
- 14 had pre-Roe restrictions, 12 of which applied to any stage in the pregnancy and two that applied once the infant was “quick” – and all but one (Louisiana) had medical exceptions.
- Two states have laws in place restricting abortion beyond the 20-22 week “viability” supported by Roe: the Texas heartbeat bill and Oklahoma’s ban from fertilization.
- 19 have laws in place that would take effect without Roe, some of which explicitly cite a Roe
- Without Roe, there would be in effect one 20-week ban, four 15-week bans, eight heartbeat acts, and seven “total” bans that prohibit abortions starting either at fertilization of implantation.
- All 27 states would allow abortions at any point to save the mother’s life, even without
- Six states would allow abortions in the presence of fetal anomalies, even without
- Eight states would allow abortions for pregnancies caused by rape or incest, even without
- Two states – both Carolinas – would allow abortions at any point to save the woman or in the case of rape, incest, or fetal anomalies.
From President Joe Biden and Senator Elizabeth Warren (D-MA) all the way down to man- and woman-on-the-streets protesters, abortion activists use hyperbole, slippery slope fallacies, and, at times, outright falsehoods to push the narrative that ending Roe means ending abortion access in America. These laws will kill women, they say – and yet there are medical exceptions in every single state. They infer that allowing states to regulate abortion access independent of the federal government will lead to bans on gay or even interracial marriage, contraceptive use, and even the presence of LGBTQ students in schools.
The Wikipedia post on abortions in the United States by state admits that by the time Roe v. Wade was decided, only one state out of 50 prohibited abortion without exception – but also includes a map of the nation color-coded by restriction levels, showing a full 30 states in red, the color tagged “Illegal,” with only one state tagged as “Legal in case of rape,” two tagged “Legal in case of danger to woman’s health,” and four as “Legal in case of danger to woman’s health, rape or incest, or likely damaged fetus.” Politico even went so far as to claim that “a 1931 Michigan law would go into place, leaving no exceptions for abortion in cases of rape, incest or medical emergencies, and which could throw women and doctors into prison.” Yet the statute itself clearly states that abortions are allowed to save the life of the woman, and the only people listed as guilty of a crime are those who actually perform the abortion on the woman or administer abortion medications. Politicians, activists, and the left-wing media will push their agenda at every opportunity; that’s a given. But the narrative doesn’t hold up to the facts, and the truth shines through.