Everything about the American abortion war has taken on an air of inevitability. The Supreme Court will reverse Roe v. Wade, the landmark abortion decision establishing a constitutional right to end a pregnancy. The United States will divide along expected lines, with abortion broadly accessible in blue states and all but entirely criminalized in red states.
This narrative is not completely wrong. Twelve states have passed so-called trigger bans that will outlaw all or most abortions if Roe and Planned Parenthood v. Casey are overturned. At the same time, 16 states and the District of Columbia have policies guaranteeing abortion rights no matter what the Supreme Court decides.
But states in the middle of this spectrum—which have not made their preferences as explicit—may well be more contested than people seem to assume. The resulting legal landscape will be complex, and, perhaps more important, those states’ policies may evolve over time. The forces shaping a post-Roe America may prove surprising, encouraging some states that currently restrict abortion to reverse course.
Consider the following factors. One might expect abortion-skeptical states, at least in the short term, to keep many of their restrictions on the books. Indeed, most states, even ones perceived as supportive of abortion, ban abortion past a certain point in pregnancy (24 weeks, for example), require parental permission for minors’ abortions, or mandate that providers report certain information to the state, to name some of the more popular laws. But in the long term, if Roe falls, these states may face pressure to shift toward more abortion-friendly policies.
First, polls consistently show that public opinion supports some level of abortion access, especially early in pregnancy, and opposes criminalizing doctors or women. Those numbers have been quite stable, yet even so, plenty of state legislatures have restricted abortion without political consequences. But if the Supreme Court clearly repudiates Roe, we may see a backlash that galvanizes people who haven’t typically taken a side in the abortion debate, including many who accept restrictions on abortion but not outright bans. This is unlikely to happen across the country, but it could make a key difference in a handful of states. Hints of such political mobilization are already apparent in places such as Virginia, which has historically restricted abortion but now has repealed some of those regulations following public outcry.
Second, states likely to ban abortion are concentrated in the South and the Midwest, while abortion-friendly states, with some exceptions, cluster on the coasts. The effect of criminalization will be to further consolidate services in regions permitting abortion. That will make the services of any clinic outside those centers—in the middle of the country, for example—far more in demand. The financial considerations of abortion clinics have been an unpopular topic for abortion-rights advocates. But the provision of abortion services is more efficient at scale, and noncoastal clinics should be able to provide their services for less cost as they grow. A booming market for contraception, which reached $250 million by 1938, helped create pressure from businesses on states to broaden access. If the market for abortion care shifts so that regional clinics become better resourced and politically powerful, states might begin to listen to those providers and the professional organizations that represent them.
Third, laws that seek to punish abortion—which, at present, focus on providers and those who assist them—are going to become harder to enforce. One key reason is the emergence of telehealth for abortion. Last year, the federal government lifted a restriction on the first drug in a medication abortion—a two-drug regimen that ends a pregnancy before 10 weeks of gestation. Providers can now mail abortion pills to patients, and as a result, entirely virtual clinics, offering medication abortion through online telehealth services, have proliferated. Even in the states that ban remotely provided abortions, early terminations accomplished by pills that are mailed will be hard to trace and difficult to deter. The time, money, and infrastructure to effectively enforce those laws may not be worth the cost. In the long run, underenforcement could lead to repeal or modification of those policies.
But other factors put pressure in the opposite direction, potentially pushing even middle-ground states toward more restrictive policies. True, polls suggest that Americans do not want abortion to be criminalized, especially early in pregnancy, but the nation is politically fragmented, and abortion bans may be relatively popular in some states. Even in more contested states, many politicians may be able to protect themselves from the consequences of unpopular policies, thanks to gerrymandering, uncompetitive seats, and limits on voting. Republicans may be worried that committed anti-abortion voters will be less likely to donate to or turn out for swing-state politicians who don’t meet their demands. Florida and Georgia, for instance, are large, diverse, politically contested states where the state legislatures tend to pass laws on issues designed to energize the base, regardless of what the wider public thinks. This dynamic might only deepen after Roe is gone, particularly if abortion aligns with other hot-button topics in the country’s culture war.
Furthermore, even if polls suggest that most Americans don’t want Roe overturned, no one yet knows how Americans will react to its demise. Many polls that ostensibly focus on Roe in fact ask questions that cover a range of reproductive-rights issues, some of which have little to do with Roe at all. Public reaction will depend on what the Supreme Court says, how the media present the Court’s decision, and how successfully social movements can spin the results.
If enforcing abortion bans is hard, that might encourage abortion-skeptical states to keep their abortion restrictions, not the other way around. Before the Supreme Court decided Roe, abortion prosecutions were the exception, not the rule, typically occurring when provider negligence led to a patient’s death. States periodically cracked down, but many were content to have a law on the books condemning abortion without doing much to enforce it. The same bargain might appeal to some states after Roe is gone: access to black-market abortion, underenforced criminal bans, a symbolic statement about the evils of abortion, and the option to ratchet up enforcement on providers when conservative voters demand it.
States may even seek to avoid political consequences by prioritizing whom to punish. In other countries where abortion is a crime, such as Ecuador, prosecutors disproportionately target not just doctors but also low-income patients, and especially people of color. Selective enforcement can blunt backlash to a criminal law—this seems to have been the case with the criminalization of marijuana and the prohibition of alcohol in the U.S. Though people of different races were roughly equally likely to violate those laws, people of color were far more likely to be arrested or prosecuted. Taking aim at marginalized communities may allow states to escape pressure from more privileged Americans, who will feel that the law won’t personally affect them.
So how many states will gravitate toward criminalization, proactive protection of abortion rights, or something in between? Nothing is predetermined, and each state will be different, responding to the particular politics and pressures of their populations. Both movements will find that one-size-fits-all strategies won’t work; they’ll have to become masters of the specifics of each state. Without Roe, this will be a state-by-state fight, and they’ll have to find strategies that speak less to the nation and more to the politics of place.