Where abortion will stand—and fall—if Roe goes down

It was bedtime in much of the United States when the Family Policy Alliance organized an impromptu Twitter Space meeting for 11 p.m. Eastern on Monday. But the late hour didn’t deter 90 people from tuning in to learn more about the big news of the day. Less than two hours earlier, the news website Politico had published a report about a draft Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization. The leaked draft called for a reversal of Roe v. Wade, the 1973 Supreme Court decision that established a right to abortion throughout the country.

The speakers in the Family Policy Alliance meeting emphasized that the draft court opinion was not a final ruling. Even so, senior vice president Autumn Leva said, “If this is true, we now have 50 battlefields in the fight for life where your pro-life vote matters more than it ever has.”

Some states have complete protections for unborn babies that could take effect if the Supreme Court sticks with the Dobbs draft’s conclusion, written by Justice Samuel Alito, and overturns Roe. Other states have laws and court rulings standing in the way of pro-life legislation. Ingrid Duran, state legislative director for the National Right to Life Committee, said her group is advising states to wait on a final ruling before acting in response to the leaked opinion. Once a ruling comes down, she acknowledged there will be no one-size-fits-all way for states to proceed.

In Virginia, voters recently replaced a pro-abortion governor with pro-life Gov. Glenn Youngkin, and pro-lifers have a slim majority in the Legislature. Their next step will be to reinstate some of the pro-life laws former Gov. Ralph Northam repealed. Meanwhile, South Carolina has a law that protects unborn babies with detectable heartbeats, but it is held up in court. Duran said South Carolina’s attorney general could ask the courts to remove an injunction against the law if Dobbs comes down as a pro-life win.

Other states have laws similar to South Carolina’s. “So priority one in those states will be for the state legal offices to go into court and ask for injunctions against the heartbeat laws to be lifted to allow them to enforce them,” said Steve Aden, chief legal officer for Americans United for Life (AUL). Although they can’t make that request now since the U.S. Supreme Court hasn’t issued a final opinion, Aden recommended they start looking into it soon. He said his staff at AUL is putting together a list of injunctions against pro-life laws in various states and recommendations for the legal actions necessary to get them lifted.

Meanwhile, places like Kansas, Montana, Florida, and Iowa will remain largely unaffected by the eventual Dobbs decision due to state Supreme Court precedents that declared a right to abortion in their state constitutions. In Kansas, Duran said, activists are working to educate voters about the August ballot, where they’ll have the opportunity to vote on an amendment clarifying that the state constitution does not guarantee a right to abortion or the funding of abortions. In 2014, voters in Tennessee passed a similar amendment, overruling a state Supreme Court decision that had blocked pro-life efforts.

Sam Lee, a pro-life lobbyist in Missouri, has been encouraging lawmakers in his state to prioritize a similar constitutional amendment in the last two weeks of the legislative session. The day after the Dobbs draft opinion leaked, he said, lawmakers in the state Capitol congratulated him on the apparent victory. But he said he’s still focused on the work to be done, whether or not the court overturns Roe: “We’ve still got bills to pass in the last two weeks of session.”

That includes a bill to put a pro-life constitutional amendment on the ballot. Lee fears the Missouri Supreme Court could use litigation against a pro-life law to declare a right to abortion in the state constitution. That could happen even if the U.S. Supreme Court overturns Roe completely. But a pro-life amendment to the Missouri Constitution could prevent it.

Missouri currently has a pro-life law set to take effect once states have more freedom to protect unborn babies. That law makes abortion a felony and threatens loss of license for medical professionals who perform the procedure. In a news release Tuesday, Missouri Attorney General Eric Schmitt said that if the high court overturns Roe, he’s “prepared to immediately issue the opinion that would protect the unborn in Missouri.”

“Hopefully in those states that have conditional laws, they also have state attorneys general with the political will to enforce them,” said Aden, pointing out a new dynamic in the possible post-Roe future. Like the Missouri attorney general, Attorney General Leslie Rutledge of Arkansas also promised this week to certify her state’s conditional law immediately if Dobbs overturns Roe.

But other states are hampered by less-willing officials. Michigan Attorney General Dana Nessel said at a Planned Parenthood of Michigan conference in 2019 that she had no intention of enforcing that state’s 1931 pre-Roe statute. Gov. Gretchen Whitmer this year even filed a lawsuit against prosecuting attorneys in counties with abortion facilities in an attempt to get the Michigan Supreme Court to declare the law unconstitutional and to establish a right to abortion in the state constitution. The pro-life prosecuting attorneys and state pro-life groups have pushed back, arguing Whitmer doesn’t have any standing to sue since no one has attempted to enforce the pre-Roe law yet.

Julaine Appling, president of the Wisconsin Family Council, celebrated that her state has also “successfully kept in place for a day such as this” a pre-Roe statute that protects unborn babies from abortion except to save the life of the mother. “Our problem is that we currently have an attorney general who a couple of months ago said that he would not enforce it,” she said. But she noted that pro-lifers could help hold him accountable: If a case arises in the future that the attorney general refuses to enforce, pro-life groups or the Wisconsin Legislature could sue him for failing to do his job.

Regardless of a state’s leanings on abortion, the advent of the 50-state battle expected if the high court overturns Roe will put more responsibility in the hands of citizens and government officials.

“States will have both the opportunity and the responsibility to protect the lives of their youngest citizens like never before,” said Leva from the Family Policy Alliance. “Voters and their elected leaders will bear the responsibility for lost lives if they continue to advance pro-abortion policies. … None of us will have the excuse anymore of Roe v. Wade in that abortion is some sort of constitutional right in the country. That excuse will be gone.”