Introduction and summary
If the U.S. Supreme Court overturns Roe v. Wade, as it is expected to do in the coming days, the U.S. Constitution will no longer be interpreted as protecting the right to abortion.1 As a result, states will be able to decide whether abortion is legal and under what circumstances. While some states already have extreme legislation in effect that bans nearly all abortion care, 19 states have bans on the books passed either pre- or post-Roe, many of which—while not currently in force—could come into effect if the Supreme Court overturns Roe.
These laws are uniformly extreme in nature. Three states have statutes that do not include exceptions to save a patient’s life. Eighteen of the laws (from 15 states) do not allow for abortion in cases of rape, while 20 of the laws (from 16 states) do not allow for abortion in cases of incest. Moreover, nine states have statutes that, though not explicitly authorizing prosecution of a person seeking care, also do not explicitly preclude such prosecutions in the same manner other states do. In the context of those states’ full legal schemes, these statutes should not provide grounds for criminalizing a person for her own abortion, but a politically motivated prosecutor could try to argue they do—arguments that courts should soundly reject.
These statutes may serve not only as potential fodder for politically motivated prosecution but also as deterrents to the provision of abortion care. Many providers may not be willing to risk providing care even under the narrow exceptions that exist in some states due to the extreme nature of the penalties. Furthermore, even though some of these statutes are clear that they do not authorize charging or convicting someone for ending their pregnancy, without Roe’s protection, law enforcement may try to identify another justification—for example, a misapplication of a child protection statute—to punish a person who receives an abortion.
Right now, these pre-Roe and trigger laws are no more than words on a page, as they have been for years and, in some cases, decades. It is the explicit actions of elected or appointed public officials that will give them force. Therefore, not only those who pass abortion bans and sign them into law will be responsible for the consequent harm, but so will those who impose them.
This report explains the general operation of these 19 states’ pre-Roe bans, trigger bans, and constitutional amendments. It then summarizes each state’s trigger ban, pre-Roe statute, constitutional amendment, or combination thereof and describes the process for how each could be implemented if Roe is overturned.
Types of state abortion bans on the books
Since Roe v. Wade was decided in 1973, 13 states have enacted trigger bans—statutes that would outlaw abortion in the event Roe were overturned. Nine states have statutes banning abortion that predate Roe, so-called “pre-Roe bans” that remain unenforced, on the books. Five states have amended their constitutions to restrict abortion to the maximum extent legally permissible. Three states have both a trigger ban and a pre-Roe ban; two states have a trigger ban and a constitutional amendment; and one state, Arkansas, has all three types of abortion prohibitions.
Pre-Roe bans
Nine states have laws on their books banning abortion that were enacted before Roe was decided in 1973. These “pre-Roe” statutes ban abortion in all but a few exceptional circumstances and subject violators to prison terms.
These statutes were drafted in a different era: Alabama’s, the oldest, dates back to 1852. Moreover, the statues have gone unenforced since the decision in Roe made them resoundingly unconstitutional. Nevertheless, it is possible that nearly all these legislative zombies could be revived if Roe is overturned.2 Whether these pre-Roe bans are enforceable, however, is an open legal question, and their status would almost undoubtedly be litigated in the event they were revived.
Trigger bans
“Trigger bans” are referred to as such because they are explicitly written to take effect if Roe is overturned. These statutes would criminalize providing abortion in all or all but some exceptional circumstances.
Each state’s trigger ban has its own legislative history, operates in a unique legal landscape, and has its own specific process for implementation.3 Seven states require that before a trigger ban can come into effect, a state official certify that the U.S. Supreme Court has overturned Roe.4 Six states’ trigger bans, according to their own terms, automatically take effect—though in reality, these statutes would likely be given force by local prosecutors, the people who would bring enforcement action under them.
Pre-Roe bans are not typically considered trigger bans, given that they were written before Roe and do not refer to the case. It is fair to note, however, that they could be viewed as a type of trigger ban, as their potential enforceability is “triggered” only if Roe is overturned.
Constitutional amendments
Finally, five states have constitutional amendments that limit or preclude the right to abortion. Although these amendments do not themselves criminalize abortion, they are nonetheless significant. In the event the federal right to abortion is overturned, state constitutional amendments will play a large role in shaping how state statutes are interpreted. Furthermore, they will foreclose, or at least make much more difficult, the possibility of developing new, future arguments for a right to abortion under a state’s law.
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Summaries of state abortion bans
The following section provides an overview of pre-Roe bans, trigger bans, and constitutional amendments currently in state law.
It is important to note that additional restrictions on abortion exist in all the states discussed below. If Roe were to fall and many of these laws were to become effective, there would likely be significant legal issues—and widespread public confusion—surrounding how they operated together.
Alabama
Alabama has a pre-Roe ban and a constitutional amendment.5
Pre-Roe ban
Implementation: Unclear. The state attorney general likely would have to set out policies to effectuate the ban, but discretion ultimately may rest with local district attorneys.
Summary of law: In 1852, Alabama enacted a total ban on providing abortion care unless necessary to preserve the life or health of a patient.6 The statute does not contain an exception for rape or incest. Violators are subject to imprisonment or “hard labor for the county” for up to one year and a fine of $100 to $1,000. The statute, while not explicitly authorizing prosecution of a person seeking care, also does not explicitly preclude such prosecutions in the same manner other states do.
Statute language
The full text of Alabama’s pre-Roe ban reads:
Any person who willfully administers to any pregnant woman any drug or substance or uses or employs any instrument or other means to induce an abortion, miscarriage or premature delivery or aids, abets or prescribes for the same, unless the same is necessary to preserve her life or health and done for that purpose, shall on conviction be fined not less than $100.00 nor more than $1,000.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than 12 months.
Constitutional amendment
Implementation: If Roe is overturned, a court would be required to interpret, in any future legal challenge, the language at issue as not supporting or protecting a right to abortion under Alabama law.
Summary of law: In 2018, Alabama voted in favor of a state constitutional amendment that declares that “the public policy” of the state is to protect fetal rights and clarifies that “[n]othing in this constitution secures or protects a right to abortion[.]”7
Statute language
Alabama’s state constitutional amendment reads:
(a) This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.
(b) This state further acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.
(c) Nothing in this constitution secures or protects a right to abortion or requires the funding of an abortion.
Arizona
Arizona has a pre-Roe ban.8
Pre-Roe ban
Implementation: Unclear. The state attorney general likely would have to set out policies to effectuate the ban, but discretion ultimately may rest with local district attorneys. State officials have publicly disputed whether this law could be revived because some argue that it was superseded by a 15-week ban enacted in 2022.9
Summary of law: In 1901, Arizona enacted a total ban on providing abortion care “unless it is necessary” to save a patient’s life.10 The statute does not contain any additional health exception nor a rape or incest exception. Violators are subject to imprisonment for two to five years. The statute, while not explicitly authorizing prosecution of a person seeking care, also does not explicitly preclude such prosecutions in the same manner other states do.
Statute language
The statute’s full text reads:
A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.
Arkansas
Arkansas has a pre-Roe ban, a trigger ban, and a constitutional amendment.
Pre-Roe ban
Implementation: Unclear. The state attorney general likely would have to set out policies to effectuate the ban, but discretion ultimately may rest with local district attorneys.
Summary of law: In 1969, Arkansas enacted a total ban on providing abortion care. There are no exceptions under the statute, not even to save a patient’s life.11 Violators are guilty of a Class D felony, which, under Arkansas law, is punishable by up to six years’ imprisonment.12 The person seeking care is shielded from prosecution under this statute.
Statute language
The statute’s full text reads:
(a) It is unlawful for any person to administer or prescribe any medicine or drug to any woman with child with the intent to produce an abortion or premature delivery of any fetus before or after the period of quickening or to produce or attempt to produce the abortion by any other means.
(b) Any person violating a provision of this section is guilty of a Class D felony.
(c) Nothing in this section shall be construed to allow the charging or conviction of a woman with any criminal offense in the death of her own unborn child in utero.
Trigger ban
Implementation: The ban takes effect after the state attorney general certifies that Roe has been overturned.13 The state attorney general likely would have to set out policies to effectuate the ban, and discretion ultimately may rest with local district attorneys.
Summary of law: In 2021, Arkansas enacted a total ban on providing abortion care “except to save the life of a pregnant woman in a medical emergency.”14 The statute does not contain any additional health exception nor a rape or incest exception. Violators are subject to imprisonment for up to ten years and/or assessed a fine of up to $100,000. The person seeking care is shielded from prosecution under this statute.
Statute language
The trigger ban’s text reads:
(a) A person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency.
(b) Performing or attempting to perform an abortion is an unclassified felony with a fine not to exceed one hundred thousand dollars ($100,000) or imprisonment not to exceed ten (10) years, or both.
(c) This section does not: (1) Authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child; or (2) Prohibit the sale, use, prescription, or administration of a contraceptive measure, drug, or chemical if the contraceptive measure, drug, or chemical is administered before the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure, drug, or chemical is sold, used, prescribed, or administered in accordance with manufacturer instructions.
(d) It is an affirmative defense to prosecution under this section if a licensed physician provides medical treatment to a pregnant woman which results in the accidental or unintentional injury or death to the unborn child.
…
SECTION 2. CONTINGENT EFFECTIVE DATE. This act becomes effective on and after the certification of the Attorney General that:
(1) The United States Supreme Court overrules, in whole or in part, the central holding of Roe v. Wade, 410 U.S. 113 (1973), reaffirmed by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), thereby restoring to the State of Arkansas the authority to prohibit abortion; or
(2) An amendment to the United States Constitution is adopted that, in whole or in part, restores to the State of Arkansas the authority to prohibit abortion.
Constitutional amendment
Implementation: If Roe is overturned, a court would be required, in any future legal challenge, to interpret the language at issue as not supporting or protecting a right to abortion under Arkansas law.
Summary of law: In 1988, Arkansas voted in favor of a state constitutional amendment that declares that it is the state’s policy to protect life “from conception until birth, to the extent permitted by the Federal Constitution.”15
Statute language
The state’s constitutional amendment reads:
Section 1: Public funding
No public funds will be used to pay for any abortion, except to save the mother’s life.
Section 2: Public policy
The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.
Section 3: Effect of amendment
This amendment will not affect contraceptives or require an appropriation of public funds.
Idaho
Idaho has a trigger ban.16
Trigger ban
Implementation: The statute automatically takes effect 30 days after the U.S. Supreme Court issues a decision overturning Roe.17 The state attorney general likely would have to set out policies to effectuate the ban, and discretion ultimately may rest with local district attorneys.
Summary of law: In 2020, Idaho enacted a total ban on providing abortion care unless one of two exceptions apply:18 1) if the pregnancy is the result of rape or incest that has been reported to law enforcement or 2) if a provider determines that an abortion was necessary “to prevent the death of the pregnant woman.”19 The statute makes clear, however, that threats of self-harm do not qualify in the latter case, even when a physician believes that self-harm is likely.20
Violators are subject to imprisonment for two to five years, and a physician’s medical license will either be suspended or revoked depending on the circumstances. The person seeking care is shielded from prosecution under this statute.
Statute language
The trigger ban’s text reads:
(1) Notwithstanding any other provision of law, this section shall become effective thirty (30) days following the occurrence of either of the following circumstances: (a) The issuance of the judgment in any decision of the United States supreme court that restores to the states their authority to prohibit abortion; or (b) Adoption of an amendment to the United States constitution that restores to the states their authority to prohibit abortion
(2) Every person who performs or attempts to perform an abortion as defined in this chapter commits the crime of criminal abortion. Criminal abortion shall be a felony punishable by a sentence of imprisonment of no less than two (2) years and no more than (5) years in prison. The professional license of any health care professional who performs or attempts to perform an abortion or who assists in performing or attempting to perform an abortion in violation of this subsection shall be suspended by the appropriate licensing board for a minimum of six (6) months upon a first offense and shall be permanently revoked upon a subsequent offense.
(3) It shall be an affirmative defense to prosecution under subsection (2) of this section and to any disciplinary action by an applicable licensing authority, which must be proven by a preponderance of the evidence, that: (a)(i) The abortion was performed or attempted by a physician as defined in this chapter; (ii) The physician determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman. No abortion shall be deemed necessary to prevent the death of the pregnant woman because the physician believes that the woman may or will take action to harm herself; and (iii) The physician performed or attempted to perform the abortion in the manner that, in his good faith medical judgment and based on the facts known to the physician at the time, provided the best opportunity for the unborn child to survive, unless, in his good faith medical judgment, termination of the pregnancy in that manner would have posed a greater risk of the death of the pregnant woman. No such greater risk shall be deemed to exist because the physician believes that the woman may or will take action to harm herself; or (b)(i) The abortion was performed or attempted by a physician as defined in this chapter; (ii) If the woman is not a minor or subject to a guardianship, then, prior to the performance of the abortion, the woman has reported the act of rape or incest to a law enforcement agency and provided a copy of such report to the physician who is to perform the abortion; (iii) If the woman is a minor or subject to a guardianship, then, prior to the performance of the abortion, the woman or her parent or guardian has reported the act of rape or incest to a law enforcement agency or child protective services and a copy of such report has been provided to the physician who is to perform the abortion; and (iv) The physician who performed the abortion complied with the requirements of paragraph (a)(iii) of this subsection regarding the method of abortion.
(4) Medical treatment provided to a pregnant woman by a health care professional as defined in this chapter that results in the accidental death of, or unintentional injury to, the unborn child shall not be a violation of this section.
(5) Nothing in this section shall be construed to subject a pregnant woman on whom any abortion is performed or attempted to any criminal conviction and penalty.
Kentucky
Kentucky has a trigger ban.21
Trigger ban
Implementation: The statutory text states that it “shall become effective immediately” if either Roe is reversed, “in whole or in part,” or if a U.S. constitutional amendment is adopted that allows states “the authority to prohibit abortion.”22 The state attorney general likely would have to set out policies to effectuate the ban, and discretion ultimately may rest with local district attorneys.
Summary of law: In 2019, Kentucky enacted a total ban on providing abortion care unless necessary to save the patient’s life or to prevent “substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”23 The statute does not contain an exception for rape or incest. Furthermore, these life and health exceptions only apply for “a physical condition,” meaning even an imminent threat of suicide would not qualify.
Violators are guilty of a Class D Felony, which, under Kentucky law, is punishable by one to five years’ imprisonment.24 The person seeking care is shielded from prosecution under this statute.
Statute language
The trigger ban’s full text reads:
(1) As used in this section: (a) “Fertilization” means that point in time when a male human sperm penetrates the zona pellucida of a female human ovum; (b) “Pregnant” means the human female reproductive condition of having a living unborn human being within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth; and (c) “Unborn human being” means an individual living member of the species homo sapiens throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.
(2) The provisions of this section shall become effective immediately upon, and to the extent permitted, by the occurrence of any of the following circumstances: (a) Any decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade, 410 U.S. 113 (1973), thereby restoring to the Commonwealth of Kentucky the authority to prohibit abortion; or (b) Adoption of an amendment to the United States Constitution which, in whole or in part, restores to the Commonwealth of Kentucky the authority to prohibit abortion.
(3) (a) No person may knowingly: 1. Administer to, prescribe for, procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being; or 2. Use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.
(3) (b) Any person who violates paragraph (a) of this subsection shall be guilty of a Class D felony.
(4) The following shall not be a violation of subsection (3) of this section: (a) For a licensed physician to perform a medical procedure necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman. However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of the unborn human being in a manner consistent with reasonable medical practice; or (b) Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death to the unborn human being.
(5) Nothing in this section may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.
(6) Nothing in this section may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug, or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions.
(7) The provisions of this section shall be effective relative to the appropriation of Medicaid funds, to the extent consistent with any executive order by the President of the United States, federal statute, appropriation rider, or federal regulation that sets forth the limited circumstances in which states must fund abortion to remain eligible to receive federal Medicaid funds pursuant to 42 U.S.C. secs. 1396 et seq.
Louisiana
Louisiana has a trigger ban and a constitutional amendment.25
Trigger ban
Implementation: According to the statute’s text, this total ban on abortion would “become effective immediately” if Roe were overturned or if states were otherwise allowed to limit abortion.26 The state attorney general likely would have to set out policies to effectuate the ban, and discretion ultimately may rest with local district attorneys.
Summary of law: In 2006, Louisiana enacted a ban on providing abortion care after six weeks of pregnancy27—before many people even know that they are pregnant28—unless the life of the patient is threatened or “to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”29 The statute does not contain a rape or incest exception.
Violators are subject to one to 10 years’ imprisonment “at hard labor” and can be fined $10,000 to $100,000.30 The person seeking care is shielded from prosecution under this statute.
Statute language
The trigger ban’s full text reads:
A. The provisions of this Act shall become effective immediately upon, and to the extent permitted, by the occurrence of any of the following circumstances: (1) Any decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973), thereby, restoring to the state of Louisiana the authority to prohibit abortion. (2) Adoption of an amendment to the United States Constitution which, in whole or in part, restores to the state of Louisiana the authority to prohibit abortion.
B. The provisions of this Act shall be effective relative to the appropriation of Medicaid funds, to the extent consistent with any executive order by the President of the United States, federal statute, appropriation rider, or federal regulation that sets forth the limited circumstances in which states must fund abortion to remain eligible to receive federal Medicaid funds pursuant to 42 U.S.C. 1396 et. seq.
C. No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.
D. Any person in violation of this Section shall be prosecuted pursuant to the effective provisions of R.S. 14:87, and shall be subject to the penalties provided in R.S. 40:1061.29.
E. Nothing in this Section may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions.
F. It shall not be a violation of Subsection C of this Section for a licensed physician to perform a medical procedure necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman. However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child in a manner consistent with reasonable medical practice.
G. Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death to the unborn child is not a violation of Subsection C of this Section.
H. Nothing in this Section may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.I. The following terms as used in this Section shall have the following meanings: (1)“Fertilization” means that point in time when a male human sperm penetrates the zona pellucida of a female human ovum. (2) “Pregnant” means the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth. (3) “Unborn human being” means an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.
J. This Section shall be known, and may be cited, as the Human Life Protection Act.
Constitutional amendment
Implementation: If Roe is overturned, a court would be required, in any future legal challenge, to interpret the language at issue as not supporting or protecting a right to abortion under Louisiana law.
Summary of law: In 2020, Louisiana voted in favor of a state constitutional amendment that declares that “nothing” in the state’s constitution should be interpreted as protecting a right to abortion.31
Statute language
The state’s constitutional amendment reads:
To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.
Michigan
Michigan has a pre-Roe ban.32
Pre-Roe ban
Implementation: Unclear. The state attorney general likely would have to set out policies to effectuate the ban, but discretion ultimately may rest with local district attorneys. If Roe does fall, however, this particular law may not be given effect again. In May 2022, the Michigan state court granted an injunction against the law, finding it likely that the pre-Roe ban violated Michigan’s state constitution.33
Summary of law: In 1931, Michigan enacted a total ban on providing abortion care unless “necessary to preserve the life of such woman.”34 The statute does not contain an exception for rape or incest. Violators are subject to the punishment specified for manslaughter, a felony—“imprisonment in the state prison, not more than 15 years or by fine of not more than 7,500 dollars, or both, at the discretion of the court.”35 The statute, while not explicitly authorizing prosecution of a person seeking care, also does not explicitly preclude such prosecutions in the same manner other states do.
Statute language
The statute’s text reads:
Administering drugs, etc., with intent to procure miscarriage—Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.
In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.
Mississippi
Mississippi has a pre-Roe ban and a trigger ban.36
Pre-Roe ban
Implementation: Unclear. The state attorney general likely would have to set out policies to effectuate the ban, but discretion ultimately may rest with local district attorneys.
Summary of law: In 1942, Mississippi enacted a total ban on providing abortion care unless the pregnancy is the result of rape or threatens the pregnant person’s life.37 Violators are subject to between one and 10 years’ imprisonment, and medical providers’ licenses to practice are automatically revoked upon conviction. It is unclear, due to the statute’s reference to another statutory provision, whether this statute intends to specifically shield the person who sought care.
Statute language
The statute’s full text reads:
(1) Any person wilfully and knowingly causing, by means of any instrument, medicine, drug or other means whatever, any woman pregnant with child to abort or miscarry, or attempts to procure or produce an abortion or miscarriage shall be guilty of a felony unless the same were done by a duly licensed, practicing physician: (a) Where necessary for the preservation of the mother’s life; (b) Where pregnancy was caused by rape.
Said person shall, upon conviction, be imprisoned in the State Penitentiary not less than one (1) year nor more than ten (10) years; provided, however, if the death of the mother results therefrom, the person procuring, causing or attempting to procure or cause the illegal abortion or miscarriage shall be guilty of murder.
(2) No act prohibited in subsection (1) of this section shall be considered exempt under the provisions of subparagraph (a) thereof unless performed upon the prior advice in writing, of two (2) reputable licensed physicians.
(3) The license of any physician or nurse shall be automatically revoked upon conviction under the provisions of this section.
(4) Nothing in this section shall be construed as conflicting with Section 41-41-73.
Trigger ban
Implementation: The statutory text affirms that the statute will be implemented “[f]rom and after ten days following the date of publication by the Attorney General of Mississippi that the Attorney General has determined that the United States Supreme Court has overruled the decision of Roe v. Wade, and that it is reasonably probable that this section would be upheld by the Court as constitutional.”38 The state attorney general likely would have to set out policies to effectuate the ban, and discretion ultimately may rest with local district attorneys.
Summary of law: In 2007, Mississippi enacted a total ban on providing abortion care unless “necessary for the preservation of the mother’s life or where the pregnancy was caused by rape.”39 The statute does not contain any additional health exception. Furthermore, the rape exception only applies “if a formal charge of rape has been filed with an appropriate law enforcement official.”40 Violators are punishable by between one and 10 years’ imprisonment. The person seeking care is shielded from prosecution under this statute.
Statute language
The trigger ban’s full text reads:
[From and after ten days following the date of publication by the Attorney General of Mississippi that the Attorney General has determined that the United States Supreme Court has overruled the decision of Roe v. Wade, and that it is reasonably probable that this section would be upheld by the Court as constitutional, this section will read as follows:]
(1) As used in this section, the term “abortion” means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus.(2) No abortion shall be performed or induced in the State of Mississippi, except in the case where necessary for the preservation of the mother’s life or where the pregnancy was caused by rape.
(3) For the purposes of this section, rape shall be an exception to the prohibition for an abortion only if a formal charge of rape has been filed with an appropriate law enforcement official.
(4) Any person, except the pregnant woman, who purposefully, knowingly or recklessly performs or attempts to perform or induce an abortion in the State of Mississippi, except in the case where necessary for the preservation of the mother’s life or where the pregnancy was caused by rape, upon conviction, shall be punished by imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than ten (10) years.
Missouri
Missouri has a trigger ban.41
Trigger ban
Implementation: For the trigger ban to take effect, Missouri’s governor, attorney general, or legislature must certify that Roe has been overturned.42 The state attorney general likely would have to set out policies to effectuate the ban, and discretion ultimately may rest with local district attorneys.
Summary of law: In 2019, Missouri enacted a total ban on providing abortion unless the pregnancy presents a “medical emergency.”43 The statute criminalizes abortion even in cases of rape or incest. Violators are guilty of a Class B felony, which, under Missouri law, is punishable by five to 15 years’ imprisonment.44 The person seeking care is shielded from prosecution under this statute.
Statute language
The trigger ban’s full text reads:
1. This section shall be known and may be cited as the “Right to Life of the Unborn Child Act”.
2. Notwithstanding any other provision of law to the contrary, no abortion shall be performed or induced upon a woman, except in cases of medical emergency. Any person who knowingly performs or induces an abortion of an unborn child in violation of this subsection shall be guilty of a class B felony, as well as subject to suspension or revocation of his or her professional license by his or her professional licensing board. A woman upon whom an abortion is performed or induced in violation of this subsection shall not be prosecuted for a conspiracy to violate the provisions of this subsection.
3. It shall be an affirmative defense for any person alleged to have violated the provisions of subsection 2 of this section that the person performed or induced an abortion because of a medical emergency. The defendant shall have the burden of persuasion that the defense is more probably true than not.
*4. The enactment of this section shall only become effective upon notification to the revisor of statutes by an opinion by the attorney general of Missouri, a proclamation by the governor of Missouri, or the adoption of a concurrent resolution by the Missouri general assembly that: (1) The United States Supreme Court has overruled, in whole or in part, Roe v. Wade, 410 U.S. 113 (1973), restoring or granting to the state of Missouri the authority to regulate abortion to the extent set forth in this section, and that as a result, it is reasonably probable that this section would be upheld by the court as constitutional; (2) An amendment to the Constitution of the United States has been adopted that has the effect of restoring or granting to the state of Missouri the authority to regulate abortion to the extent set forth in this section; or (3) The United States Congress has enacted a law that has the effect of restoring or granting to the state of Missouri the authority to regulate abortion to the extent set forth in this section.
North Carolina
North Carolina has a pre-Roe ban.45
Pre-Roe ban
Implementation: Unclear. The state attorney general likely would have to set out policies to effectuate the ban, but discretion ultimately may rest with local district attorneys.
Summary of law: In 1881, North Carolina enacted a total ban on providing abortion care.46 There are no exceptions, even to save the patient’s life. Violators are guilty of a Class H felony, which, under North Carolina law, is punishable by up to more than three years’ imprisonment.47 The statute, while not explicitly authorizing prosecution of a person seeking care, also does not explicitly preclude such prosecutions in the same manner other states do.
Statute language
The statute’s full text reads:
If any person shall willfully administer to any woman, either pregnant or quick with child, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug or other substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy such child, he shall be punished as a Class H felon.
North Dakota
North Dakota has a trigger ban.48
Trigger ban
Implementation: The trigger ban takes effect 30 days after the state attorney general certifies that the U.S. Supreme Court has overturned Roe.49 The state attorney general likely would have to set out policies to effectuate the ban, and discretion ultimately may rest with local district attorneys.
Summary of law: In 2007, North Dakota enacted a total ban on providing abortion care.50 The statute contains no exceptions but does allow providers to assert an affirmative defense if the abortion was provided to save the patient’s life or if the pregnancy resulted from rape or incest. Violators are guilty of a Class C felony, which, under North Dakota law, is punishable by up to five years’ imprisonment and/or a $10,000 fine.51 The person seeking care is shielded from prosecution under this statute.
Statute language
The trigger ban’s full text reads:
1. As used in this section: a. “Abortion” means the use or prescription of any substance, device, instrument, medicine, or drug to intentionally terminate the pregnancy of an individual known to be pregnant. The term does not include an act made with the intent to increase the probability of a live birth; preserve the life or health of a child after live birth; or remove a dead, unborn child who died as a result of a spontaneous miscarriage, an accidental trauma, or a criminal assault upon the pregnant female or her unborn child. b. “Physician” means an individual licensed to practice medicine under chapter 43-17. c. “Professional judgment” means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
2. It is a class C felony for a person, other than the pregnant female upon whom the abortion was performed, to perform an abortion.
3. The following are affirmative defenses under this section: a. That the abortion was necessary in professional judgment and was intended to prevent the death of the pregnant female. b. That the abortion was to terminate a pregnancy that resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest, as those offenses are defined in chapter 12.1-20. c. That the individual was acting within the scope of that individual’s regulated profession and under the direction of or at the direction of a physician.
…
As provided by S.L. 2019, ch. 126, § 2, this section becomes effective on the thirtieth day after:
1. The adoption of an amendment to the United States Constitution which, in whole or in part, restores to the states the authority to prohibit abortion; or
2. The attorney general certifies to the legislative council the issuance of the judgment in any decision of the United States Supreme Court which, in whole or in part, restores to the states authority to prohibit abortion.
Oklahoma
Although Roe is still law, in May 2022, Oklahoma became the first state to enact a law prohibiting abortion at any point in pregnancy since 1973.52 Oklahoma also has a pre-Roe ban and a trigger ban.53
Pre-Roe ban
Implementation: The language in Oklahoma’s trigger ban converts the pre-Roe ban to a trigger ban, stating that it is to be implemented in the event Roe is overturned.
Summary of law: In 1910, Oklahoma enacted a total ban that criminalizes providing an abortion unless “necessary to preserve her life.”54 The statute does not contain any further health exception or an exception for rape or incest. Violators are subject to two to five years’ imprisonment.55 The statute, while not explicitly authorizing prosecution of a person seeking care, also does not explicitly preclude such prosecutions in the same manner other states do.
Statute language
The statute’s full text reads:
Every person who administers to any woman, or who prescribes for any woman, or advises or procures any woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life shall be guilty of a felony punishable by imprisonment in the State Penitentiary for not less than two (2) years nor more than five (5) years.
Trigger ban
Implementation: As stated above, this statute explicitly converts Oklahoma’s pre-Roe ban into a trigger ban by stating that it is to be implemented if Roe is overturned. Namely, the statute specifies that the trigger ban “shall only become effective” once the state attorney general has certified either that the U.S. Supreme Court has overruled Roe or that abortion can otherwise be banned by states.56
Summary of law: In 2022, Oklahoma enacted a total ban drawing on the state’s pre-Roe ban.57 The revised law—now a trigger ban—maintains the same substantive terms as the pre-Roe ban.58
Statute language
The trigger ban’s text reads:
Chapter 308, O.S.L. 2021 shall only become effective when the Attorney General certifies that:
- The United States Supreme Court has overruled in whole or in part Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), such that the State of Oklahoma may enforce Section 861 of Title 21 of the Oklahoma Statutes or enact a similar statute prohibiting abortion throughout pregnancy; or
- An amendment to the United States Constitution is adopted such that the State of Oklahoma the authority to prohibit abortion may enforce Section 861 of Title 21 of the Oklahoma Statutes or enact a similar statute prohibiting abortion throughout pregnancy.
…
It being immediately necessary for the preservation of the public peace, health or safety, an emergency is hereby declared to exist, by reason whereof this act shall take effect and be in full force from and after its passage and approval.
South Dakota
South Dakota has a trigger ban.59
Trigger ban
Implementation: If Roe were overturned, this law would take immediate effect.60 It is likely, though, that state prosecutors who decide to bring enforcement action under the statute would truly make it effective.
Summary of law: In 2005, South Dakota enacted a total ban criminalizing providing abortion care unless “necessary to preserve the life of the pregnant female.”61 The statute does not contain any further health exception or an exception for rape or incest. Violators are guilty of a Class 6 felony, which, under South Dakota law, is punishable by one year in the local jail or “two years imprisonment in the state penitentiary or a fine of four thousand dollars, or both.”62 The statute, while not explicitly authorizing prosecution of a person seeking care, also does not explicitly preclude such prosecutions in the same manner other states do.
Statute language
The trigger ban’s text reads:
Any person who administers to any pregnant female or who prescribes or procures for any pregnant female any medicine, drug, or substance or uses or employs any instrument or other means with intent thereby to procure an abortion, unless there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female, is guilty of a Class 6 felony. (Section 7 of SL 2005, ch 187, as amended by SL 2005, ch 188, § 1, provides: “This Act is effective on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy.”)
Tennessee
Tennessee has a trigger ban and a constitutional amendment.63
Trigger ban
Implementation: This statute would take effect 30 days after Roe is overturned.64 The state attorney general likely would have to set out policies to effectuate the ban, and discretion ultimately may rest with local district attorneys.
Summary of law: In 2019, Tennessee enacted a total ban on providing abortion care65 unless to save the life or “to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.”66 The statute does not contain a rape or incest exception. Violators are subject to imprisonment for three to 15 years and a fine of up to $10,000. The person seeking care is shielded from prosecution under this statute.
Statute language
The trigger ban’s full text reads:
(a) As used in this section: (1) “Abortion” means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant with intent other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus; (2) “Fertilization” means that point in time when a male human sperm penetrates the zona pellucida of a female human ovum; (3) “Pregnant” means the human female reproductive condition of having a living unborn child within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth; and (4) “Unborn child” means an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.
(b) A person who performs or attempts to perform an abortion commits the offense of criminal abortion. Criminal abortion is a Class C felony.
(c) It is an affirmative defense to prosecution under subsection (b), which must be proven by a preponderance of the evidence, that: (1) The abortion was performed or attempted by a licensed physician; (2) The physician determined, in the physician’s good faith medical judgment, based upon the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman. No abortion shall be deemed authorized under this subdivision (c)(2) if performed on the basis of a claim or a diagnosis that the woman will engage in conduct that would result in her death or substantial and irreversible impairment of a major bodily function or for any reason relating to her mental health; and (3) The physician performs or attempts to perform the abortion in the manner which, in the physician’s good faith medical judgment, based upon the facts known to the physician at the time, provides the best opportunity for the unborn child to survive, unless in the physician’s good faith medical judgment, termination of the pregnancy in that manner would pose a greater risk of the death of the pregnant woman or substantial and irreversible impairment of a major bodily function. No such greater risk shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct that would result in her death or substantial and irreversible impairment of a major bodily function or for any reason relating to her mental health.
(d) Medical treatment provided to the pregnant woman by a licensed physician which results in the accidental death of or unintentional injury to or death of the unborn child shall not be a violation of this section.
(e) This section does not subject the pregnant woman upon whom an abortion is performed or attempted to criminal conviction or penalty.
… effective the thirtieth day following the occurrence of either of the following circumstances, the public welfare requiring it: (1) The issuance of the judgment in any decision of the United States Supreme Court overruling, in whole or in part, Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), thereby restoring to the states their authority to prohibit abortion; or (2) Adoption of an amendment to the United States Constitution that, in whole or in part, restores to the states their authority to prohibit abortion.
Constitutional amendment
Implementation: If Roe is overturned, a court could be required, in any future legal challenge, to interpret the language at issue as not supporting or protecting a right to abortion under Tennessee law. Typically, constitutional amendments constrain how statutes are interpreted, but this amendment is designed to depend on statutes.
Summary of law: In 2014, Tennessee voted in favor of a constitutional amendment that states that nothing in the state constitution “secures or protects a right to abortion.”67 However, the amendment left room for future statutes and statutory amendments that could address “circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother” but not only in those circumstances.68
Statute language
The constitutional amendment’s full text reads:
Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.
Texas
Texas has a pre-Roe ban and a trigger ban.69
Pre-Roe ban
Implementation: Unclear. Because of a court decision, the state legislature may need to reenact the statute for it to be enforceable.70
Summary of law: In 1961, Texas enacted a total ban on providing abortion care unless for “the purpose of saving the life of the mother.”71 The statute contains no additional health exception nor rape or incest exceptions. Violators are subject to imprisonment for two to five years if the abortion is provided with the pregnant person’s consent; and “if it be done without her consent, the punishment shall be doubled.”72 The statute, while not explicitly authorizing prosecution of a person seeking care, also does not explicitly preclude such prosecutions in the same manner other states do.
Statute language
The statute’s full text reads:
Article 1191. If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use toward her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By ‘abortion’ is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.
Article 1192. Whoever furnished the mean, for procuring an abortion knowing the purpose intended is guilty as an accomplice.
Article 1193. If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to procure abortion, provided it be shown that each means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.
Article 1194. If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.
Article 1195. Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.
Article 1196. Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.
Trigger ban
Implementation: Although not specified in the statutory language itself, it has been reported that this ban would take effect 30 days after the U.S. Supreme Court explicitly overturns Roe—or 30 days after a U.S. Supreme Court ruling “that has the same effect.”73 The state attorney general likely would have to set out policies to effectuate the ban, and discretion ultimately may rest with local district attorneys.
Summary of law: In 2021, Texas enacted a total ban on providing abortion care unless for a “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”74 This language means that mental health conditions would never qualify, even in the imminent risk for suicide. The statute does not have an exception for rape or incest.
Violators are subject to imprisonment for “not more than 20 years or less than 2 years” and to a fine of at least $100,000 per violation for attempting an abortion, or a fine and imprisonment of “not more than 99 years or less than 5 years” for performing an abortion.75 The person seeking care is shielded from prosecution under this statute.
Statute language
The trigger ban’s full text reads:
Sec. 170A.002. PROHIBITED ABORTION; EXCEPTIONS.
(a) A person may not knowingly perform, induce, or attempt an abortion.
(b) The prohibition under Subsection (a) does not apply if: (1) the person performing, inducing, or attempting the abortion is a licensed physician; (2) in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced; and (3) the person performs, induces, or attempts the abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in the reasonable medical judgment, that manner would create: (A) a greater risk of the pregnant female’s death; or (B) a serious risk of substantial impairment of a major bodily function of the pregnant female.
(c) A physician may not take an action authorized under Subsection (b) if, at the time the abortion was performed, induced, or attempted, the person knew the risk of death or a substantial impairment of a major bodily function described by Subsection (b)(2) arose from a claim or diagnosis that the female would engage in conduct that might result in the female’s death or in substantial impairment of a major bodily function.
(d) Medical treatment provided to the pregnant female by a licensed physician that results in the accidental or unintentional injury or death of the unborn child does not constitute a violation of this section.
…
Sec. 170A.003. CONSTRUCTION OF CHAPTER. This chapter may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted.
…
Sec. 170A.004. CRIMINAL OFFENSE.
(a) A person who violates Section 170A.002 commits an offense.
(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if an unborn child dies as a result of the offense.
…
Sec. 170A.005. CIVIL PENALTY. A person who violates Section 170A.002 is subject to a civil penalty of not less than $100,000 for each violation. The attorney general shall file an action to recover a civil penalty assessed under this section and may recover attorney’s fees and costs incurred in bringing the action.
…
Sec. 170A.006. CIVIL REMEDIES UNAFFECTED. The fact that conduct is subject to a civil or criminal penalty under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.
…
Sec. 170A.007. DISCIPLINARY ACTION. In addition to any other penalty that may be imposed under this chapter, the appropriate licensing authority shall revoke the license, permit, registration, certificate, or other authority of a physician or other health care professional who performs, induces, or attempts an abortion in violation of Section 170A.002.
Utah
Utah has a trigger ban.76
Trigger ban
Implementation: The ban takes effect the same day that the legislative general counsel certifies to the legislature’s Legislative Management Committee that the U.S. Supreme Court has determined that states can ban abortion.77 The state attorney general likely would have to set out policies to effectuate the ban, and discretion ultimately may rest with local district attorneys.
Summary of law: In 2020, Utah enacted a total ban on providing abortion care unless the following exceptions apply: if the pregnancy resulted from rape or incest, so long as the victim has reported to law enforcement; if an abortion is necessary to save the person’s life or “avert … a serious risk of substantial and irreversible impairment of a major bodily function of the woman on whom the abortion is performed”; or in the case of certain severe fetal abnormalities.78
Violators are guilty of a second-degree felony, which, under Utah law, is punishable by one to 15 years’ imprisonment.79 The statute, while not explicitly authorizing prosecution of a person seeking care, also does not explicitly preclude such prosecutions in the same manner other states do.
Statute language
The trigger ban’s text reads:
76-7a-201. Abortion prohibition — Exceptions — Penalties.
(1) An abortion may be performed in this state only under the following circumstances: (a) the abortion is necessary to avert: (i) the death of the woman on whom the abortion is performed; or (ii) a serious risk of substantial and irreversible impairment of a major bodily function of the woman on whom the abortion is performed; (b) two physicians who practice maternal fetal medicine concur, in writing, in the patient’s medical record that the fetus: (i) has a defect that is uniformly diagnosable and uniformly lethal; or (ii) has a severe brain abnormality that is uniformly diagnosable; or (c) (i) the woman is pregnant as a result of: (A) rape; (B) rape of a child; or (C) incest; and (c) (ii) before the abortion is performed, the physician who performs the abortion: (A) verifies that the incident described in Subsection (1)(c)(i) has been reported to law enforcement; and (B) if applicable, complies with requirements related to reporting suspicions of or known child abuse.
(2) An abortion may be performed only: (a) by a physician; and (b) in an abortion clinic or a hospital, unless it is necessary to perform the abortion in another location due to a medical emergency.
(3) A person who performs an abortion in violation of this section is guilty of a second degree felony.
(4) In addition to the penalty described in Subsection (3), the department may take appropriate corrective action against an abortion clinic, including revoking the abortion clinic’s license, if a violation of this chapter occurs at the abortion clinic
(5) The department shall report a physician’s violation of any provision of this section to the state entity that regulates the licensing of a physician.
…
Section 3. Section 76-7a-301 is enacted to read:
If, at the time this chapter takes effect, any provision in the Utah Code conflicts with a provision of this chapter, the provision of this chapter supersedes the conflicting provision.
Section 4. Contingent effective date.
(1) As used in this section, “a court of binding authority” means: (a) the United States Supreme Court; or (b) after the right to appeal has been exhausted: (i) the United States Court of Appeals for the Tenth Circuit; (ii) the Utah Supreme Court; or (iii) the Utah Court of Appeals.
(2) The provisions of this bill take effect on the date that the legislative general counsel certifies to the Legislative Management Committee that a court of binding authority has held that a state may prohibit the abortion of an unborn child at any time during the gestational period, subject to the exceptions enumerated in this bill.
West Virginia
West Virginia has a pre-Roe ban and a constitutional amendment.80
Pre-Roe ban
Implementation: Unclear. The state attorney general likely would have to set out policies to effectuate the ban, but discretion ultimately may rest with local district attorneys.
Summary of law: In 1848, West Virginia enacted a total ban on providing abortion care unless done with “the intention of saving the life of such woman or child.”81 The statute contains no further health exception or an exception for rape or incest. Violators are subject to between three and 10 years’ imprisonment.82 The statute, while not explicitly authorizing prosecution of a person seeking care, also does not explicitly preclude such prosecutions in the same manner other states do.
Statute language
The statute’s full text reads:
Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years; and if such woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.
Constitutional amendment
Implementation: If Roe is overturned, a court would be required, in any future legal challenge, to interpret the language at issue as not supporting or protecting a right to abortion under West Virginia law.
Summary of law: In 2018, West Virginia voted to amend its state constitution to clarify that “nothing” in that document protected a right to abortion.83
Statute language
The state’s constitutional amendment reads:
Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.
Wisconsin
Wisconsin has a pre-Roe ban.84
Pre-Roe ban
Implementation: Unless the Wisconsin Supreme Court overturns its own precedent, this pre-Roe ban cannot be revived due to how the statute has been interpreted.85
Summary of law: In 1969, Wisconsin enacted a total abortion ban that designated different punishments depending on whether a fetus was “quick.”86 The statute contains an exception to “save the life of the mother” but does not contain any further health exception or an exception for rape or incest.87 Depending on the precise facts, violators are guilty of either a Class H felony—which, under Wisconsin law, is punishable by up to six years’ imprisonment, a fine of up to $10,000, or both—or a class E felony, which is punishable by up to 15 years’ imprisonment, a fine of up to $50,000, or both.88 The person seeking care is shielded from prosecution under this statute.
Statute language
The statute’s full text reads:
(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
(2) Any person, other than the mother, who does either of the following is guilty of a Class E felony: (a) Intentionally destroys the life of an unborn quick child; or (b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother’s death was committed.
(5) This section does not apply to a therapeutic abortion which: (a) Is performed by a physician; and (b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and (c) Unless an emergency prevents, is performed in a licensed maternity hospital.
(6) In this section “unborn child” means a human being from the time of conception until it is born alive.
Wyoming
Wyoming has a trigger ban.89
Trigger ban
Implementation: If Roe is overturned, the Wyoming attorney general must report to the governor and the Joint Judiciary Interim Committee within 30 days. Five days after the governor certifies to the secretary of state that Roe has been overruled, the law takes effect.90
Summary of law: In March 2022, Wyoming enacted a total ban on providing abortion care unless certain exceptions apply.91 The statute’s exceptions are for pregnancies that result from rape or incest and cases in which an abortion is necessary “to preserve the woman from a serious risk of death or of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions.”92
The statute, in its current form, does not include any enforcement provisions. Rather, it contains a provision stating that if Roe is in fact overturned, the Wyoming Legislature’s joint judiciary interim committee will “determine if any additional revisions to the statutes are advisable and to develop any necessary legislation.” It is therefore unclear how violators might be punished or whether a person who seeks abortion care would be subject to prosecution under the statute.93
Statute language
The statute’s text reads:
(a) An abortion shall not be performed after the embryo or fetus has reached viability except when necessary to preserve the woman from an imminent peril that substantially endangers her life or health, according to appropriate medical judgment. This subsection is repealed on the date that subsection (b) of this section becomes effective.
(b) An abortion shall not be performed except when necessary to preserve the woman from a serious risk of death or of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions, or the pregnancy is the result of incest as defined by W.S. 6-4-402 or sexual assault as defined by W.S. 6-2-301. This subsection shall be effective five (5) days after the date that the governor, on advice of the attorney general, certifies to the secretary of state that the supreme court of the United States has overruled Roe v. Wade, 410 U.S. 113 (1973) in a manner that would authorize the enforcement of this subsection or has otherwise issued a final decision related to abortion that would authorize the enforcement of this subsection in accordance with that decision and without violating any conditions, rights or restrictions recognized by the supreme court.
(c) For purposes of subsection (b) of this section the attorney general shall review any final decisions of the supreme court of the United States related to Roe v. Wade, 410 U.S. 113 (1973) or otherwise related to abortion to determine whether the enforcement of subsection (b) of this section would be fully authorized under that decision. The attorney general shall, within thirty (30) days of the date of the final decision of the supreme court, report the results of each review under this subsection to the joint judiciary interim committee and the governor who may, if applicable, certify the results of the review to the office of the secretary of state.
…
Section 2.
(a) After receiving certification from the governor that W.S. 35‑6‑102(b) is effective as provided in that subsection, the secretary of state shall report that fact to the management council of the legislature, the joint judiciary interim committee and the Wyoming state board of medicine and shall immediately publish the effective date of W.S. 35‑6‑102(b) and 35‑6‑117(b) on the website of the secretary of state’s office, which effective date shall be five (5) days after the date that the secretary of state received the certification. The publication under this section shall also provide that W.S. 35‑6‑102(a) and 35‑6‑117(a) are repealed on that date.
(b) After receiving a report under subsection (a) of this section, the joint judiciary interim committee shall review the provisions of title 35, chapter 6 of the Wyoming statutes to determine if any additional revisions to the statutes are advisable and to develop any necessary legislation.
Section 3. This act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution.
See also
Conclusion
If Roe is overturned, the 19 states described in this report have preemptive abortion bans on the books, while other states—including Florida, Indiana, Montana, and Nebraska—are likely to take quick steps to ban abortion.94 All told, more than half of U.S. states are poised to prohibit access to this type of essential medical care. Although states with preemptive or likely bans are concentrated in the South and Midwest, these bans’ consequences for abortion access will be felt nationwide as abortion providers strain to meet demand where it remains legal.
For generations, Americans have known abortion to be a fundamental right. In some states, that may change soon, and dramatically.
The author would like to thank Marquisha Johns at the Center for American Progress for her research assistance.
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