Now that President Trump has nominated the conservative judge Brett Kavanaugh to fill Supreme Court Justice Anthony Kennedy's soon-to-be-vacant position on the court, pro-choice advocates are going over every worst case scenario that could arise if abortion access is compromised. One of those scenarios revolves around how many states would ban abortion if Roe v. Wade were overturned.
Nearly two dozen states are anticipated to revoke abortion access in the event that the landmark 1973 ruling is overturned. For some, this is because so-called "trigger laws" are in place. These laws would immediately make abortion illegal in their respective states as soon as Roe v Wade were overturned. These states, according to the Guttmacher Institute, include Louisiana, Mississippi, North Dakota, and South Dakota.
Back in 2016, then-candidate Donald Trump said that, if he were given the opportunity to appoint a few Supreme Court justices, he believed that Roe v. Wade could be overturned. Though he had not been publicly anti-choice throughout most of his adult life, he came out against abortion access when he decided to run for president on a Republican ticket.
"If we put another two or perhaps three justices on, that will happen," he said during his third debate with Hillary Clinton. "And that will happen automatically, in my opinion, because I am putting pro-life justices on the court." If successful, Kavanaugh would be the second conservative justice appointed to the court under Trump.
But those four aforementioned states are not the only ones who are poised to potentially ban abortion in the event that Roe goes out the window. Several other states still have pre-Roe abortion bans on their books, even though they are not being followed. If Roe v. Wade is overturned, it's feasible that those anti-abortion laws could become active again.
And, notably, they're not just the right-leaning states that you might expect. According to Guttmacher, the blue bastion of Massachusetts stands among states like Arkansas, West Virginia, and Oklahoma when it comes to keeping pre-Roe abortion bans in place.
"There’s no way to sugarcoat it: with this nomination, the constitutional right to access safe, legal abortion in this country is on the line," Dawn Laguens, Executive Vice President, Planned Parenthood Federation of America said in a statement following Trump's announcement Monday night. "We already know how Brett Kavanaugh would rule on Roe v. Wade, because the president told us so. We take Trump at his word that Brett Kavanaugh would overturn Roe v. Wade and get rid of the Affordable Care Act."
One of the greatest challenges before those who would seek to see abortion ban is setting up a legal challenge that would wind its way through the court system and find itself on the Supreme Court docket. However, reports indicate that these efforts are well underway.
"[W]e are focusing right now on two specific types of abortion bans," Denise Burke, senior counsel for the anti-choice group Alliance Defending Freedom, said at the Evangelicals for Life conference in January. "So we’re not looking at regulation, we’re actually looking to enact abortion bans."
Burke described the wave of efforts to enact 15-week abortion bans as a "bait" for challenges that might make their way up to the Supreme Court. "We’re kind of basically baiting them—come on, fight us on turf that we have already set up and established," she said.
"It's not a question of if; it's a question of what or when," Sarah Lipton-Lubet, vice president for reproductive health and rights at the National Partnership for Women and Families, told Kaiser Health News on Tuesday.
It's difficult to know exactly how many states would move to make abortion illegal if given the chance, or precisely how quickly they would move, but abortion rights advocates estimate that nearly 22 would make the leap. If and when Kavanaugh is confirmed to the court, it's simply a waiting game until the challenge.
