What would happen if Roe v. Wade were overturned

“We hold that Roe and Casey must be overruled,” the draft document says, citing two landmark Supreme Court rulings protecting the right to abortion, the 1973 Roe v. Wade decision and the 1992 Planned Parenthood v. Casey decision. Together, they establish a constitutional right to an abortion until about 24 weeks into a pregnancy, or when the fetus is viable outside the womb.

There is no federal law protecting or prohibiting abortion. So the Supreme Court striking down Roe would leave abortion laws entirely up to the states. And they are sharply divided.

Unless Congress gets rid of the filibuster in the Senate, it’s very unlikely lawmakers can agree on some kind of federal law determining when abortion should be allowed or banned, leaving America with a patchwork of abortion laws.

The latest action on abortion legislation across the states

Here’s what abortion in America could look like in a post-Roe world.

Courts have previously halted abortion bans before 24 weeks

About half of states would ban or severely restrict abortion access, largely by instituting trigger laws that would go into effect immediately if the court struck down Roe. By contrast, 16 states and the District of Columbia have policies that explicitly protect the right to abortion; other blue states could follow.

Restrictions on abortion rights have increased in the past decade as policymakers in mostly Republican-led states have sought to provoke a Supreme Court challenge to the 1973 precedent by banning abortion before about 24 weeks, the generally accepted medical standard for fetus viability outside the womb.

Thus far, pre-viability bans from 16 states have been blocked by court orders and have not gone into effect. Twenty-one states have pre-viability bans in effect for pregnancies between 20 and 24 weeks. In reviewing the Mississippi law, which would ban almost all abortions after 15 weeks of pregnancy, the Supreme Court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional.”

Seven states — Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon and Vermont — don’t impose any bans based on gestational periods.

How abortion laws in the U.S. compare to those in other countries

The length of a pregnancy is commonly calculated from the start of a person’s most recent menstrual period. Many people don’t know they’re pregnant until after the sixth week.

An average pregnancy lasts about 40 weeks, and viability, the point at which a fetus could survive outside the uterus, generally falls between 24 and 26 weeks. Federal and state courts had consistently blocked enforcement of laws that ban abortion before 18 weeks, until September.

Mississippi currently bans most abortions after 20 weeks, and 16 other states ban them at 22 weeks from the last menstrual period. These bans violate Supreme Court rulings, but the laws were never challenged and went into effect.

State abortion policies have become more extreme compared with 21 years ago

Since 2000, the Guttmacher Institute, an abortion research group that supports abortion rights, has evaluated how hostile or supportive each state is toward abortion. States with more protections are deemed more supportive, and states with more restrictions are considered more hostile. Over time, the country has become more extreme in both directions.

The ratings are based on six key abortion restrictions and six protections for access. A state with all the restrictions and no protections has the highest restriction rating and is considered extremely hostile. Six states have that maximum level. A state with all six protections and no restrictions has the highest protection rating and is considered extremely supportive. Only California meets that threshold.

This growing policy divide between states reflects an increase in abortion-related legislation. More than half of all abortion restrictions in the country have been enacted since 2001, most of them concentrated in the South and Midwest. Far fewer abortion protections have passed.

Momentum around abortion restrictions has been growing in the past decade, culminating with the nomination of Justice Amy Coney Barrett in 2020. Her ascension to the court, replacing liberal Justice Ruth Bader Ginsburg, solidified its conservative majority and emboldened abortion opponents who had been seeking ways to strike down Roe. 2021 saw more restrictions enacted than in the past three years combined. In 2022, red states have passed more extreme laws that often don’t allow for exceptions for abortion in the case of rape.

“Some states have adopted so many restrictions that just about all that was left was to ban abortion,” said Elizabeth Nash, the principal policy associate for state issues at the Guttmacher Institute.

Nash argues that abortion restrictions exacerbate logistical and financial obstacles for marginalized communities, such as racial minorities, low-income people and people in rural communities, and that further rollbacks of abortion rights will only increase the burdens on these populations.

“Those with more resources and privilege would most likely find ways to get the care they need,” she said. “Abortion is health care, plain and simple.”

Danielle Rindler contributed to this report. Sources: Guttmacher Institute.