If High Court Reverses Roe v. Wade, 22 States Likely To Ban Abortion

What would the U.S. look like without Roe v. Wade, the 1973 case that legalized abortion nationwide?

That's the question now that President Trump has chosen conservative Judge Brett Kavanaugh as his nominee to replace retiring Supreme Court Justice Anthony Kennedy.

Reversing the landmark case would not automatically make abortion illegal across the country. Instead, it would return the decision about abortion legality to the states, where a patchwork of laws already in place render abortion more or less available, largely depending on individual states' political leanings.

"We think there are 22 states likely to ban abortion without Roe" because of a combination of factors including existing laws and regulations on the books and the positions of the governors and state legislatures, says Amy Myrick, staff attorney at the Center for Reproductive Rights, which represents abortion-rights advocates in court.

"The threat level is very high now," Myrick says.

Kavanaugh never opined on Roe v. Wade directly during his tenure on the U.S. Court of Appeals in Washington, D.C. In his 2006 confirmation hearing for that position, though, he said he would follow Roe v. Wade as a "binding precedent" of the Supreme Court — which judges in lower courts are required to do.

Opponents of Roe buoyed by the pick

"Judge Kavanaugh is an experienced, principled jurist with a strong record of protecting life and constitutional rights," said a written statement from Marjorie Dannenfelser, president of Susan B. Anthony List. Dannenfelser spearheaded support for Trump in his presidential campaign after he promised to appoint to the Supreme Court only justices who would overturn Roe v. Wade.

Kennedy, by contrast, was a swing vote on abortion issues. He frequently sided with conservatives to uphold abortion restrictions. However, in key cases in 1992 and 2016, he sided with liberals to uphold Roe's core finding that the right to abortion is part of a right to privacy that is embedded within the U.S. Constitution.

Even now, with Roe v. Wade's protections in place, a woman's access to abortion is heavily dependent on where she lives.

According to an analysis by the Guttmacher Institute, a reproductive-rights think tank, 19 states have adopted 63 new restrictions on abortion rights and access.

At the same time, 21 states adopted 58 measures last year intended to expand access to women's reproductive health care services.

Since 2011, states have enacted nearly 1,200 separate abortion restrictions, according to Guttmacher, making these types of laws far more common.

As of now, four states — Louisiana, Mississippi and North and South Dakota — have what are known as abortion "trigger laws." Those laws, passed long after Roe was handed down, would make abortion illegal if and when the Supreme Court were to say Roe is no more.

"They are designed to make abortion illegal immediately," says Myrick.

Another dozen or so states still have pre-Roe abortion bans on the books.

Some have been formally blocked by the courts, but not repealed. Those bans could, at least in theory, be reinstated, although "someone would have to go into court and ask to lift that injunction," says Myrick.

States could simply begin enforcing other bans that were never formally blocked, like one in Alabama that makes abortion providers subject to fines and up to a year in jail.

At the same time, Myrick says, "there are 20 states where abortion would probably remain safe and legal."