What If Abortion Was Left Up To The States?

As Texas Gov. Rick Perry (R) recently suggested, the standard Republican line on abortion is repeal Roe v. Wade and return the task of regulating abortion to the states. Perry eventually walked back his remarks and came out for a full federal ban, but this “states’ rights” argument has been used by Sen. John McCain (R-AZ) during the 2008 presidential run and it will likely come up again as the eventual Republican nominee tries to strike a middle ground that will appeal to independent voters.

But as NARAL’s Nancy Keenan points out, there is nothing “moderate” about the “leave it to the states” position. Were it to be adopted and Roe v. Wade is repealed, access to abortion could be jeopardized in 22 states:

States with near-total abortion bans:Fifteen states have currently unconstitutional and unenforceable near-total bans on abortion already on the books, either from before Roe (13 states), or in the case of 2 states (LA and UT), from the early 1990s when they seized on a close vote in the Supreme Court to try to overturn Roe. Bans in the following states may become enforceable if Roe falls: AL, AZ, AR, CO, DE, LA, MA, MI, MS, NM, OK, UT, VT, WV, and WI.

States with “trigger” bans:Four states have laws that would impose near-total criminal bans on abortion if the Supreme Court overturns Roe v. Wade (sometimes known as “trigger” bans): LA, MS, ND, and SD.


Two of these states, ND and SD, are not in the first group of 15. Thus, the number of states under threat goes from 15 to 17.

States with fully anti-choice governors and legislatures:Fifteen states have anti-choice legislatures and governors and would likely outlaw abortion if Roe falls: AL, AZ, GA, ID, LA, MI, MS, NE, ND, OH, OK, SD, TX, UT, and WI.

Five of these states, GA, ID, NE, OH, and TX, are not in the two previous categories.

Indeed, states have experienced an explosion of anti-abortion legislation following the passage of the Affordable Care Act — which seemed to have opened the floodgates for these efforts. As the Guttmacher Institute has pointed out, in the first six months of 2011, states enacted 80 abortion restrictions, “more than double the previous record of 34 abortion restrictions enacted in 2005 — and more than triple the 23 enacted in 2010.”