With Supreme Court Justice Anthony Kennedy gone, many are questioning the fate of civil liberties in the United States. One of the biggest questions is: what happens if Roe falls?
A court without Kennedy is likely to overturn Roe v. Wade, the landmark Supreme Court case establishing abortion access as a constitutional right. The anti-abortion movement knows this and has been preparing for when that day finally comes, teeing up lawsuits to go before a conservative Supreme Court.
The pro-choice movement knows this as well, sounding the alarms on Twitter and in press release statements.
“Justice Kennedy’s retirement is devastating news at a divisive time in our nation and on the Supreme Court,” said Nancy Northup, President and CEO of the Center for Reproductive Rights in a statement. “President Trump has promised to nominate Supreme Court justices who will overturn Roe v. Wade. That promise should set off alarm bells for anyone who cares about women—and the Constitution.”
The president said himself during the campaign that if he’s permitted to appoint at least two justices to the Supreme Court, Roe will likely fall. The only strategy Democrats in Congress now appear to have is to reject any judicial nominee who would vote to overturn Roe v. Wade.
So what happens to America without Roe? Well it depends largely on where you live, and if you have the means to travel to a state with abortion access.
The Center for Reproductive Rights compiled a “state-by-state alert system,” showing where the right to abortion access is most at risk. Four states have “trigger laws,” meaning they automatically ban abortion should Roe be overturned. More than a dozen states passed abortion bans before Roe, but the 1973 landmark decision made it unenforceable. Some of these were blocked by judges, but courts could activate the ban should lawmakers ask them to intervene. Others states just might not have any constitutional or statutory protections.
In all, the right to abortion access is most at jeopardy in 24 states, and these states are largely in the Midwest and South, places pundits like to describe as Trump country. In seven states and Washington, D.C., access is somewhat at risk. The right to abortion is secure in only 19 states.
According to the Guttmacher Institute, only eight states have already passed laws to try to codify the Roe v. Wade ruling and prohibit the limitation of abortion rights. That isn’t to say, access is safe. As journalist Robin Marty points out, the next abortion fight for reproductive rights activists might be safeguarding clinics.
When Roe is overturned, the right will refocus on closing those remaining clinics in legal states one by one. Your job will be to protect them.
— Robin Marty (@robinmarty) June 27, 2018
Of course even if abortion is illegal in some states, that isn’t to say the procedure can’t or won’t occur. Self-managed abortions are safe and already happening in states where abortion is inaccessible, as well as other countries where the procedure is illegal.
In Argentina, for example, abortion is illegal, but 500,000 abortions are performed each year in the country. In Argentina, it could be dangerous, particularly for people of modest means. In 2016, over 17 percent of the 245 recorded deaths of pregnant people in Argentina were due to abortion. The Human Rights Watch says this makes abortion a top cause of maternal mortality in the country. The country is on track to legalize abortion. The irony here is in the United States — in some states at least — the procedure might become illegal.