With Amy Coney Barrett’s ascension to the Supreme Court, the future of Roe v. Wade — the landmark decision establishing the constitutional right to an abortion — appears less certain than ever.
If Roe falls, the legality of abortion will revert to the states, some of which are eager to abolish the procedure outright. In some areas of the country, anti-abortion activists and lawmakers have spent years carefully laying the groundwork to make abortion illegal in the event that Roe is overturned.
In nine states, unenforced abortion bans that were passed before 1973, when Roe legalized the procedure nationwide, are still on the books. If Roe disappears, they could potentially be reenacted.
Ten states have also passed laws to immediately ban all or most abortions the moment Roe is reversed. These so-called “trigger laws” exist in Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee and Utah.
In the absence of the federal constitutional protection of the right to choose, challenges to abortion bans would be waged in state courts. In anticipation, abortion opponents in some states are now working to amend their state constitutions to ensure the right to an abortion cannot be found within them.
On Election Day, Louisiana voters will weigh in on Amendment 1, which asks whether to alter the state constitution to explicitly state that the document does not protect the right to an abortion.
Even if a state constitution does not use the word “abortion,” courts could interpret provisions of the document to protect the right to choose, explained Elizabeth Nash, interim associate director of state issues at the pro-choice Guttmacher Institute.
“You might have privacy rights or equal protection or something like that,” she said.
In Kansas, for instance, the state Supreme Court found in 2019 that women have a right to terminate a pregnancy under the state constitution, which says everyone has “inalienable natural rights.” The justices concluded that those rights included having control over one’s own body and making decisions about having a family.
The Louisiana ballot initiative is part of a national strategy to undermine abortion rights and pave the way for bans, Nash said. If Amendment 1 passes, it would decimate the legal avenues for residents to challenge abortion restrictions in their state.
Louisiana has a trigger law, which means that if Roe is overturned, abortion would be banned in all cases except when a woman’s life is at risk.
The goal of abortion opponents is to remove all constitutional protection — including both state or federal, Nash added.
“It’s a multi-step process,” she said. “ First, federal protections have to be overturned, then you change the state constitution so it does not protect abortion rights, and then an abortion ban can be adopted.”
Three other states — Tennessee in 2014, and Alabama and West Virginia in 2018 — have already amended their state constitutions to state that they do not provide a right to an abortion or require funding of abortions.
Florida, Kansas and Iowa have all tried to do something similar and failed.
On the flip side, 10 state constitutions are currently interpreted to protect the right to an abortion — those of Alaska, California, Florida, Iowa, Kansas, Massachusetts, Minnesota, Montana, New Jersey and New Mexico.
In Louisiana, abortion access has already been vastly eroded. Since Roe was decided, lawmakers have passed almost 100 pieces of anti-abortion legislation, making it much harder for patients to access services and for doctors to provide care. Only three abortion clinics remain.
This summer, the Supreme Court struck down a Louisiana abortion bill that required doctors to have admitting privileges at a local hospital, a measure that reproductive rights advocates estimated would result in the loss of all but one abortion provider in the state.
“Here in Louisiana, abortion care has been under attack since Roe was decided,” said Katrina Rogers, campaign manager of Louisiana for Personal Freedoms, a group working to defeat Amendment 1.
“It hasn’t been readily available, it’s been very challenging and difficult and expensive for people to be able to access abortion care in the state,” she said.
The amendment, paired with the trigger law, could be catastrophic for people seeking abortions in Louisiana, Rogers added, especially those without the money or resources to travel to other parts of the country for care.
About 1 in 4 women obtain an abortion in their lifetime.
“The most frightening part about Amendment 1 is that, [if passed], there is no way to really have a conversation moving forward about how and who should be able to access abortion care,” Rogers said.
For Nash at Guttmacher, the push to amend state constitutions signals the perilous state of abortion rights in America right now.
“It says something about how optimistic abortion opponents are about the Supreme Court’s views on abortion,” Nash said. “They’re really anticipating some changes.”
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