Bracing for a Supreme Court ruling this summer in a major abortion case, states are preparing abortion laws that look ahead to the legal landscape in a post-Roe v. Wade world.
A number of red states are pursuing bans on abortion that would face potentially successful court challenges in the event the Supreme Court upholds the abortion protections established by the 1973 Roe decision.
Some blue states, meanwhile, are looking to codify abortion protections in anticipation of a potential erosion of the legal precedents that prevent most abortion restrictions from getting enacted.
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Justices heard oral arguments in December in Dobbs v. Jackson Women’s Health Organization, a landmark case that will determine whether states can decide their own limits on abortion. At issue is whether the so-called age of fetal viability, which doctors typically set around 24 weeks of pregnancy, is a legitimate legal line, before which states typically can’t enact restrictions.
The case centers on Mississippi’s efforts to enforce a 15-week abortion ban.
If the current legal line is erased by the Dobbs decision, which is expected in June, the restrictive state laws making their way through some legislatures now would be at risk for invalidation in the months ahead.
Oklahoma lawmakers advanced a bill this week that would outlaw abortions in almost all circumstances, making it the latest Republican-controlled state to pursue more aggressive restrictions in anticipation of the Dobbs decision.
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Medical professionals who perform abortions in violation of the Oklahoma law, if enacted, would face long prison sentences and hefty fines. Rescuing the life of a mother in a “medical emergency” is the only exception Oklahoma lawmakers have written into their legislation.
Florida lawmakers passed an abortion bill last month that would ban the procedure after 15 weeks of pregnancy.
Previously, the state set abortion limits at 24 weeks. Under the Roe framework and reinforced by the 1992 Planned Parenthood v. Casey decision, attempts to limit abortion access before the 24-week mark were typically struck down by courts.
Kentucky lawmakers have also advanced a 15-week abortion ban this year.
Republican state lawmakers said they crafted their abortion restriction to mirror Mississippi’s to afford it immediate protection if the Dobbs case upholds the Magnolia State’s law.
Idaho Gov. Brad Little signed into law earlier this month a ban on most abortions after doctors can detect a fetal heartbeat — typically after about six weeks of pregnancy.
Modeled after a controversial Texas law that imposes similar restrictions, the Idaho law’s enforcement mechanism involves permitting civil lawsuits against abortion providers who violate the ban.
Any family member of a fetus aborted in violation of the restrictions can bring a lawsuit against the provider.
While the law allows for exceptions in cases in which a pregnancy results from rape or incest, a woman must have filed a police report prior to seeking an abortion later than six weeks into her pregnancy.
Enforcement of the Texas law passed last year also comes from civil litigation, but any private citizen can sue any person who helps a woman get an abortion there, with providers at risk of paying major financial penalties if they lose in those lawsuits.
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Some blue states are preparing legislation that would codify abortion access as justices deliberate on Dobbs.
Colorado Gov. Jared Polis, a Democrat, signed abortion protections into law on Monday, shielding access to the procedure no matter what occurs in the court this summer.
"This bill simply maintains the status quo, regardless of what happens at the federal level, and preserves all existing constitutional rights and obligations,” Polis said after signing the legislation.
Colorado has few limits on when in a pregnancy a woman can choose to seek an abortion. In 2020, voters defeated a ballot initiative that would have cut off access at 22 weeks — just before the age of viability.
California lawmakers have debated a series of proposals related to the issue, including protections for late-term pregnancy loss and programs to help out-of-state women access abortions if they face obstacles in their own states.
Proposed in the wake of the passage of the Texas abortion ban, the California measures would establish privacy laws that shield women from facing penalties back in the state that bans abortions and would use taxpayer money to help low-income women travel to California to obtain the procedure.
Potentially signaling a trend that could take hold in blue states if Roe is overturned this summer, Oregon lawmakers have also established a fund to help women travel from states that restrict abortions to Oregon to get the procedure.
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The $15 million fund would cover travel costs and even some of the cost of the procedure itself for eligible women.