past is prologue

How Far Will Red States Turn Back Roe?

Abortion-rights protesters at the Republican National Convention in 1972, a year before Roe v. Wade. Photo: Bettmann Archive/Getty Images

Republican-run state governments are lining up to roll back abortion rights in anticipation that the Supreme Court will let them do so in the Dobbs v. Jackson Women’s Health Organization decision, expected to come down near the end of the current SCOTUS term. The draconian nature of a lot of the pending state laws (some set up to take effect the minute SCOTUS acts) has gotten a lot of attention. Indeed, according to the Washington Post, by refusing to create exceptions for pregnancies called by rape or incest, a lot of these new laws are throwbacks to the distant past.

But how far back will red states take us? In many cases, back to 1973, when 33 states totally banned abortions and 13 more allowed them in limited circumstances. In some of these red states, reproductive rights would be restricted even more than they were in 1973.

The pre-Roe state abortion landscape

As late as a decade before Roe, legal abortions were rare, as the Guttmacher Institute explains:

In the early 1960s, only Pennsylvania prohibited all abortions, but 44 other states only allowed abortion when the woman’s life would be endangered if she carried the pregnancy to term. Alabama, Colorado, New Mexico, Massachusetts and the District of Columbia permitted abortion if the life or physical health of the woman was in jeopardy; Mississippi allowed abortions in case of life endangerment or rape.

The cause of abortion-law reform began with promulgation of a model state abortion statute by the highly influential American Legal Institute in 1962, recommending a ban on most abortions with exceptions at any stage of pregnancy in cases where the life or health (not limited to physical health) of the mother was endangered; or severe fetal abnormalities were likely; or the pregnancy was the result of rape or incest. These allowed abortions were referred to as “therapeutic,” as determined by a physician; there was no idea of any general right to an abortion absent some doctor-certified exception.

Beginning with Colorado in 1967, 13 states would enact laws based on the ALI model statute by 1972, when the U.S. Supreme Court began considering Roe v. Wade. Notably, six of the 13 with moderately liberal laws were in the South (Virginia, North Carolina, South Carolina, Georgia, Florida, and Arkansas); another was conservative Kansas, and still another California, whose ALI bill was signed into law by Ronald Reagan. It’s worth noting that the ALI model of generous physician-regulated exceptions to a general abortion ban was endorsed by many religious groups, including the Southern Baptist Convention, later a bulwark of hard-line opposition to legal abortion.

On a separate track, four states (all in 1970) decriminalized abortions prior to fetal viability: Hawaii was first, followed by New York (which had a Republican trifecta in power at the time), and then Washington and Alaska. There were minor variations in these laws, but the most important was that all but New York had burdensome residency requirements for those seeking legal abortions. So it was New York that became the national mecca for women (or at least these those with the means to get there) seeking legal abortions prior to Roe.

What Roe established

When finally handed down, Roe essentially required all 50 states to emulate the four that had decriminalized pre-viability abortions. More specifically, Roe set up a three-trimester scheme, as summarized by Justia’s Supreme Court Center:

In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.

So the broadest of the ALI exceptions to any ban on abortion — that protecting abortions necessary to save the health (including mental health) of the mother — was extended into the third trimester by Roe, along with an unconditional right to first-trimester abortions and a conditional right to second-trimester abortions. This decision was revolutionary in its impact on both the 13 “reform” states that adopted the ALI model and the 33 states that banned nearly all abortions. But the legitimacy of Roe was buttressed by the fact that the seven justices signing onto the decision included three appointed by Richard M. Nixon. There was also immediate majority public support for the decision.

The post-Roe landscape

With bans on pre-viability abortion placed off the table by the Court, the emerging anti-abortion movement shifted its focus to the areas still subject to control by the federal government and the states, notably funding and the regulations on late-term abortions allowed under Roe.

The movement’s first big post-Roe victory was in Congress in 1976 with the Hyde Amendment, which banned Medicaid funding for abortions in all cases other than pregnancies threatening the life of the mother. By the early 1990s, the Hyde Amendment had expanded to other federal health-insurance programs and included exceptions for pregnancies caused by rape or incest — but no “health” exception. That’s the form of the amendment that remains in place today.

While most anti-abortion activists (when pressed) opposed rape/incest exceptions all along, allied Republican politicians did not. And for the most part, until recently, anti-abortion activists have grudgingly accepted rape-incest exceptions as politically prudent, because they are very popular. (The political folly of doing otherwise was reinforced in 2012 when two Republican Senate candidates in deep-red states lost, and forfeited the chance of a GOP takeover of the Senate, in no small part because they defended the no-exceptions position in ways that made them look both sexist and idiotic.)

Where the anti-abortion movement universally drew the line, though, was in opposing the physician-regulated health exception (particularly if extended to mental health) that was in the original ALI model and was incorporated by Roe. Their attitude was perfectly reflected in John McCain’s remark during a 2008 presidential candidate debate with Barack Obama that the health exception had “been stretched by the pro-abortion movement in America to mean almost anything.”

By then the terms of debate had already been shifted by the 1992 Supreme Court decision in Planned Parenthood v. Casey, which affirmed a right to pre-viability abortions but dismantled Roe’s trimester structure and adopted a new standard in which states could enact abortion laws that did not impose an “undue burden” on the right to choose. This represented a green light to conservative lawmakers looking to erode abortion rights by hook or crook.

The new red-state militancy toward abortion exceptions

The vast recent wave of new state legislation imposing abortion restrictions that are clearly unconstitutional under Roe was the product of two developments: the expansion of Republican state legislative and gubernatorial power stemming from the GOP landslide of 2010, and the emergence of a conservative block on the Supreme Court that is clearly open to a revision and perhaps a reversal of Roe. It’s no accident that states enacted a record 89 laws restricting abortion laws in 2011, right after the 2010 landslide, or that this record was broken in 2021 with 108 restrictive laws, right after Justice Amy Coney Barrett’s confirmation as the sixth Federalist Society–vetted conservative on the Court.

The increased pace and audacity of Republican anti-abortion activism in the States in the last few years was exemplified by two unprecedented trends in laws enacted in anticipation of SCOTUS demolition of Roe: (1) bans imposed at ever-earlier phases of pregnancy, particularly those keyed to a disputed first-trimester appearance of a fetal heartbeat (i.e., “heartbeat laws” enacted in eight states: Ohio, Georgia, Louisiana, Missouri, Alabama, Kentucky, South Carolina, and Texas), culminating in an Oklahoma law making the performance of abortion at any stage of pregnancy a felony offense and near-total bans enacted in Alabama, Arkansas, and Utah; and (2) abandonment of rape-incest exceptions in ten states — Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, Ohio, Tennessee, and Texas.

Significantly, the state law before the Supreme Court in the Dobbs case, Mississippi’s, does not have a rape-incest exception for its proposed ban on abortion after 15 weeks of pregnancy (nor does the Texas “heartbeat” ban that is waiting in the wings for SCOTUS review).

And the far frontier of fetal personhood

There is little doubt that for all the agitprop about states (or “the people”) being allowed to set abortion policy instead of “unelected judges,” the ultimate goal of the anti-abortion movement has always been and continues to be federal constitutional protection of fetal life from conception, making abortion illegal from coast to coast, and presumably forever. This is the object of the Human Life Amendment that Republican national platforms have endorsed since 1980, and more broadly of the “fetal personhood” movement that is enjoying a renaissance in anti-abortion circles, as reflected in the bold new willingness to discard very popular exceptions to abortion bans.

The prevailing dream of abortion opponents is that once SCOTUS has discarded a constitutional right to abortion, it will eventually embrace the idea that the fetus is a “person” in the meaning of the 14th Amendment (and echoing a conservative Christian interpretation of the Declaration of Independence), flipping Roe on its head.

The verdict on the extremism of red-state abortion bans

In answering the question of how far back Republican-controlled states are willing to turn the clock on abortion, a lot obviously depends on exactly what SCOTUS does in Dobbs. All of the proposed bans would be more restrictive than Roe, and than the four states that anticipated Roe by recognizing a right to pre-viability abortions. But a few states are poised to go back to the total abortion bans that prevailed between 1880 and 1967, and that continued to prevail in 33 states prior to Roe — those embracing total abortion bans without rape-incest exceptions, such as Alabama, Arkansas, and Oklahoma. The states with “heartbeat” laws without rape-incest exceptions, like Louisiana, Missouri, and Texas, would come close to that reactionary standard insofar as bans would prohibit abortions at a stage of pregnancy where many people are not even aware they are pregnant.

By abandoning health exceptions, virtually all Republican-controlled states would end late-term abortions entirely, which would be more restrictive than laws in the 13 states that adopted the ALI model between 1967 and 1972.

Whatever you can say about the state laws currently on the books, however, there’s no question a clean reversal of Roe would intensify the radicalism of anti-abortion activists and the Republican Party they own lock, stock, and barrel. Unless this development produces a powerful public backlash that helps lift Democrats to power in more states, or brings back to life the dead tradition of pro-choice Republicanism, Dobbs could introduce a very dark period for what we now think of as reproductive rights.

How Far Will Red States Turn Back Roe?