The complicated calculation to determine what part of the population will retain the right to abortion

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Shortly after the Supreme Court overturned Roe v. Wade, the ruling that protected abortion rights nationwide, George Washington University law professor Jonathan Turley warned in an interview with Fox News that the immediate impact would be modest.

“The majority of citizens in the country will have no change because … most of the population resides in states that have already protected the right to abortion,” Turley said June 24, the day of the decision.

Whether he is right depends on the definition of “already protected”.

By overturning Roe, the Supreme Court allowed states to decide for themselves whether to allow or prohibit abortion. Prior to the ruling, many states had either passed laws to preemptively protect abortion rights within their borders or passed “trigger laws” to bar the procedure if the court were to overturn Roe.

In total, 16 states plus the District of Columbia have passed laws directly allowing access to abortion: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington.

Collectively, these states have a population of 125.7 million, or 37.9 percent of the nation’s population of 331.4 million, according to 2020 census calculations.

So according to this standard of affirmative action to maintain the legality of abortion – which would seem to be consistent with Turley’s formulation of “states that have already protected the right to abortion” – it would be incorrect, since 37, 9% is not equivalent to “most of the population.”

However, Turley told PolitiFact he doesn’t use that as a definition. Rather, he was referring to states that remain after states that ban abortion are removed from the equation.

The core group of states in this category are those that have passed “trigger laws” to ban abortion in the event Roe is overthrown. This includes 13 states: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming. The timeline for implementation varies by state, but each of the 13 is expected to have anti-abortion laws in place within weeks, if not sooner.

Collectively, these 13 states represent 20.7% of the US population.

However, there are other states that may also ban abortions through existing laws.

States that banned abortion before Roe

Some states have pre-Roe laws, often decades old, that could “go back” to ban abortions absent Roe’s protections. The five states in this category are Alabama, Arizona, Michigan, West Virginia and Wisconsin. These states represent an additional 9% of the population.

Legal challenges to these old laws are expected, so banning abortion in these states might not be as quick or as certain as in trigger law states. Yet even if abortion remains legal in these states pending legal challenges, it would be inaccurate to describe these five states using Turley’s formulation – “States that have already protected the right to abortion.”

States with abortion laws that had been blocked by the courts

Then there are states that passed abortion bans that had been blocked by the courts during Roe’s time in office. Those laws would likely be allowed to go into effect now that Roe is gone, though that process could take some time.

Four states fall into this category: Georgia, Iowa, Ohio and South Carolina. Together, they still represent 9.3% of the population.

In total, the states that are potentially on the path to banning abortion include up to 39% of the US population.

The flip side – and this is where Turley is right – is that 61% of the population lives in states where abortion is on the verge of remaining legal, at least in the short term. This is because anything that is not expressly prohibited is presumed legal.

In many of these states, abortion is not really “protected” by law, to use Turley’s term. While abortion remains legal for now in these states, a law banning it could be passed at any time without having to repeal a law protecting abortion.

Twelve states have neither explicitly protected abortion in law nor have laws in effect that would ban abortion after Roe’s overthrow. And they are politically mixed.

Some are generally blue or purple in their political orientation and are meant to uphold the legality of abortion. These include Minnesota, New Hampshire and New Mexico. Others are strongly Republican and could pass laws fairly quickly to ban abortion if they wanted to, including Indiana, Montana and Nebraska.

Other states where the future of abortion rights is unclear are solidly in the purple category and could see heated legislative battles over abortion, including Pennsylvania and North Carolina.

Ultimately, whether a majority of Americans will end up living in states with or without legal abortion will depend on how those 12 states divide on this issue.

Our decision

Turley said, “The majority of the nation’s citizens will have no change because…most of the population resides in states that have already protected the right to abortion.”

We found that 38% of the population lives in states that have “already protected abortion rights” in the sense that they have passed laws to maintain the legality of abortion in Roe’s absence.

At the same time, an additional 39% of the population live in states that have passed laws banning abortion and are about to go into effect with the overthrow of Roe.

That leaves 61% of the population — a majority — living in a state where, for now at least, Roe’s overthrow doesn’t change the legal status of abortion. In many of these states, abortion is not actually “protected” by law, but rather by the principle that anything not expressly prohibited is presumed legal.

We evaluate the statement as half true.

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