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 the 1973 case that legalized abortion nationwide?


That's the question now that President Trump has chosen conservative Judge Brett Kavanaugh as his nominee to replace retiring Supreme Court Justice Anthony Kennedy.

Reversing the landmark case would not automatically make abortion illegal across the country. Instead, it would return the decision about abortion legality to the states, where a patchwork of laws already in place render abortion more or less available, largely depending on individual states' political leanings.

" because of a combination of factors including existing laws and regulations on the books and the positions of the governors and state legislatures, says 

, staff attorney at the Center for Reproductive Rights, which represents abortion-rights advocates in court.



"The threat level is very high now," Myrick says.

 directly during his tenure on the U.S. Court of Appeals in Washington, D.C. In his 

 for that position, though, he said he would follow 

 as a "binding precedent" of the Supreme Court — which judges in lower courts 


"Judge Kavanaugh is an experienced, principled jurist with a strong record of protecting life and constitutional rights," said a written statement from

, president of Susan B. Anthony List. Dannenfelser spearheaded support for Trump in his presidential campaign after 

 to appoint to the Supreme Court only justices who would overturn 



Kennedy, by contrast, was a swing vote on abortion issues. He frequently sided with conservatives to uphold abortion restrictions. However, in key cases in 

's core finding that the right to abortion is part of a right to privacy that is embedded within the U.S. Constitution.
Even now, with 

's protections in place, a woman's access to abortion is heavily dependent on where she lives.
According to an analysis by the 

, a reproductive-rights think tank, 19 states have adopted 63 new restrictions on abortion rights and access.


At the same time, 21 states adopted 58 measures last year intended to expand access to women's reproductive health care services.

, states have enacted nearly 1,200 separate abortion restrictions, according to Guttmacher, making these types of laws far more common.
As of now, four states — Louisiana, Mississippi and North and South Dakota — have what are known as abortion "trigger laws." Those laws, passed long after 

 was handed down, would make abortion illegal if and when the Supreme Court were to say 

"They are designed to make abortion illegal immediately," says Myrick.


Another dozen or so states still have pre-

Some have been formally blocked by the courts, but not repealed. Those bans could, at least in theory, be reinstated, although "someone would have to go into court and ask to lift that injunction," says Myrick.


States could simply begin enforcing other bans that were never formally blocked, like one 

 that makes abortion providers subject to fines and up to a year in jail.


At the same time, Myrick says, "there are 20 states where abortion would probably remain safe and legal."


Several major challenges to state abortion laws are already in the judicial pipeline. One of these will have to get to the Supreme Court to enable a majority to overturn 

.
"It's not a question of if; it's a question of what or when," says 

, vice president for reproductive health and rights at the National Partnership for Women and Families.


The cases fall into three major categories.



The first — and most likely type to result in the court taking a broad look at 

 — are "gestational" bans that seek to restrict abortion at a certain point in pregnancy, says Lipton-Lubet.
Mississippi has a 

, currently being challenged in federal court. Louisiana enacted 

, but it would take effect only if Mississippi's law is upheld. Iowa earlier this spring passed 

, although that is being challenged in state court, not federal, under the Iowa Constitution.


The second category involves regulations on abortion providers.


One pending case, for instance, involves an 

 that would effectively ban medication abortions. Finally, there are bans on specific procedures, including several in Texas, Arkansas and Alabama that would outlaw "dilation and evacuation" abortions, which are the most common type used in the second trimester of pregnancy.


Both Myrick and Lipton-Lubet agree that there is no way to predict which abortion case is likely to reach the high court first.


The case that's actually closest to the Supreme Court, notes Myrick, is a challenge to an 

 that would outlaw abortion if the woman is seeking it for sex selection or because the fetus could be disabled. A 

 found that law unconstitutional in April.
Many analysts also agree that even with the Supreme Court's likely philosophical shift, 

 might not actually be overturned at all.


Instead, says Lipton-Lubet, a more conservative court could "just hollow it out" by allowing restrictive state laws to stand.


"The court cares about things like its own legitimacy," says Myrick, "and how often a precedent has been upheld in the past." Given that 

's central finding — that the decision to have an abortion falls under the constitutional right to privacy — has been upheld three times, even an anti-abortion court might be loath to overrule it in its entirety.


 a nonprofit news service, which is an editorially independent program of the Kaiser Family Foundation and not affiliated with Kaiser Permanente.

An earlier version of this story incorrectly called Brett Kavanaugh a District Court judge. He is a judge on the U.S. Court of Appeals in Washington, D.C. 

Crime, Law and Justice

Politics and Government News

Julie Rovner

Author

As with current abortion policies, a reversal of the landmark court decision would mean a woman's access to the procedure would continue to be determined by where she lives.

If high court reverses Roe v. Wade, 22 states likely to ban abortion

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