Pro-Life States Poised to Act if Roe Is Overturned

From heartbeat bills to protections from conception, many U.S. states are positioned to enact protections for the unborn.

Pro-lifers march in front of the Supreme Court building on June 13 in Washington.
Pro-lifers march in front of the Supreme Court building on June 13 in Washington. (photo: ROBERTO SCHMIDT / AFP via Getty Images)

WASHINGTON — As the Supreme Court stands poised to overturn Roe v. Wade, given the leaked draft in the Dobbs v. Jackson Women’s Health case, states with pro-life majorities are prepared to act quickly, as the reversal of the 1973 decision would mean that laws protecting unborn life could be enforced across the country. 

Thirteen states — Kentucky, Louisiana, South Dakota, Idaho, Tennessee, Texas, Arkansas, Mississippi, Missouri, North Dakota, Oklahoma, Utah and Wyoming — have abortion bans that will be triggered by Roe being overturned and will take effect at that point or shortly after. There are also seven states with pre-Roe abortion bans still on the books: Alabama, Arizona, Arkansas, Mississippi, Oklahoma, West Virginia and Wisconsin. In Michigan, there was a preliminary court injunction issued earlier this year, following the filing of a lawsuit by Democratic Gov. Gretchen Whitmer and Planned Parenthood, blocking its pre-Roe ban.

Ingrid Duran, director of state legislation for the National Right to Life Committee, told the Register that the actions taken in the event that Roe falls will look different for each state. 

“Every ‘trigger’ law has a different enforcement date,” she said. “Some of it is 30 days after Roe is overturned; some of them are within five days.” Application of the laws requires action by either the attorney general or the solicitor general, depending on the state. 

Duran also highlighted states like Georgia, which don’t have a pre-Roe ban or a trigger law, but have a ban on abortion after the detection of a fetal heartbeat, which could take effect in light of the decision in Dobbs

“We can assume that the attorney general in Georgia would go ahead and make a motion to lift the injunction from their heartbeat bills so that they can start protecting lives right away,” she said. In addition to Georgia, states with these heartbeat bills include Iowa, Ohio and South Carolina.

For states looking to strengthen and enforce pro-life protections, National Right to Life general counsel Jim Bopp drafted model legislation for a post-Roe world, which Duran said would make it illegal to perform an abortion unless the mother’s life is in danger. It also ensures that the mother will not face civil or criminal penalties, but includes broad criminal enforcement authority for local prosecutors and states’ attorneys general, as well as civil remedies and licensing revocation for physicians who perform illegal abortions. Duran said the legislation takes aim at those aiding illegal abortions and trafficking in abortifacients to ensure that pro-life protections are properly enforced.

Sue Liebel, director of state affairs and Midwestern regional coordinator at Susan B. Anthony Pro-Life America, said that if Roe is overturned, she would advise states to “try to go as far as you can and save as many lives as you can, given the political makeup of that state or how far the voters want to go in that state, whether that’s 15 weeks; whether that’s heartbeat or conception.” She is hopeful that if Roe is overturned, there will be a robust discussion in the states, and she pointed out that the majority of Americans are against abortion in the second and third trimesters and don’t realize that Roe allows abortion through all nine months of pregnancy. 


States’ Approaches

Carolyn McDonnell, staff counsel at Americans United for Life (AUL), told the Register that there are about 24 states with “virtually no limits on abortion.” And for these states, AUL will “really push for pro-life protections,” including prenatal nondiscrimination laws, which say “you can’t abort your baby if the sole reason for the abortion is based upon the baby’s sex, race or disability.” 

She said AUL is revising and finalizing model legislation, but the organization is awaiting the release of the decision in Dobbs so that “we understand perfectly what the decision says and how far we can protect life and to what degree we can protect life.” Following the decision, some states will be looking at legislation to “protect life at conception, while in other states that have a more permissive abortion policy, the question might be: Should we move the marker from viability to, say, 15 weeks or keep pushing the gestational limit downward to protect unborn children and mothers?” 

McDonnell also emphasized the importance of “regulating chemical abortion, especially as abortionists are trying to de-medicalize the practice,” given the Biden administration’s FDA rule change permitting at-home chemical abortions, despite concerns over the risks. Based on recent data showing that chemical abortion procedures outnumber surgical abortion procedures, she said that “the threat we really see going into the future is chemical abortion,” and “even some pro-life states can strengthen their protections against chemical abortion.”


Protecting Life in State Constitutions

McDonnell noted that, in some states, “their state judiciaries have recognized state constitutional abortion rights, and that may have swung the state abortion policy a little more towards the abortion-permissive side.” That means that for movement on pro-life laws, such states first have “to go back into the courts to see if we can reexamine some of those state constitutional abortion rights and those decisions that said that the state constitution protects abortion.” 

She brought up the recent example of Iowa, where the state Supreme Court in 2018 found a constitutional abortion right, but last week, “the Iowa Supreme Court reexamined this decision and actually ruled that there is no state constitutional abortion right, which is great news,” because “now the state is able to come in and fully protect human life.” 

A crucial vote coming up on the issue is in Kansas: The “Value Them Both” amendment would add language to the Kansas Constitution stating that “the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion,” after the state Supreme Court found a right to abortion in the state’s constitution in April 2019.

Danielle Underwood, director of communications at Kansans for Life, told the Register that Kansas is in a unique position, and all eyes could turn to the Sunflower State if Roe is overturned, as the state vote on the amendment comes on Aug. 2. 

She said that since the Kansas Supreme Court’s ruling, “we have become a destination state for abortion, and we realize that depending on what happens at the federal level, this could become an even more extreme situation where we have neighboring states that have more ability to regulate the abortion industry within their borders. If Kansas is left with a situation where we cannot enforce any regulations or any limits on the abortion industry, we will become a permanent destination state for extreme abortions.”

She said that once the U.S. Supreme Court decision is released, “we are going to be the first ballot test to indicate how Americans are responding to the news about the potential change in the way that abortion is treated legally in America.” 


Discussions and Facing Violence

Anna-Marie Visser, director of communications at Right to Life of Michigan, told the Register that the state had a pre-Roe abortion ban, in place since 1846 and reaffirmed in 1931, that has a temporary injunction in place against it after a lawsuit from Gov. Whitmer and Planned Parenthood. Pro-lifers are fighting to keep that law in place with the help of Alliance Defending Freedom.

Abortion advocates, including Whitmer, Planned Parenthood and the ACLU, moved in January to advance the “Reproductive Freedom for All” amendment, which would add a right to abortion within the Michigan Constitution. Michigan Right to Life is fighting against the amendment alongside the Michigan Catholic Conference. Visser said their affiliates have seen an increase in volunteers, and “more people talking about” the abortion issue throughout the state. 

“There’s a lot of misinformation out there or just people not really being aware that if Roe v. Wade is overturned, that doesn’t mean abortion is illegal in the U.S.; that just means the decision goes back to each state on what laws they have on abortion,” she said. “A lot of people aren’t really aware that Roe v. Wade made it so that abortion was basically legal through all nine months of pregnancy, and the majority of people in the U.S. don’t support that.” 

Visser also deplored the violence aimed at the state’s pregnancy-resource centers and pro-life organizations, including a recent incident of vandalism at the Jackson Right to Life office by the pro-abortion extremist group Jane’s Revenge. 

“A lot of pro-abortion activists say that pro-lifers don’t support women after they give birth and they don’t support children after they’re born,” she said, “but here they are attacking these centers that are doing exactly that — and so much more — for these families. It’s just disheartening to see that, and it definitely needs to be stopped.”


Caring for Women

Liebel pointed out that states looking to enact pro-life protections are also looking for ways to expand resources for women in crisis-pregnancy situations. When Texas passed its law limiting abortion to the first six weeks of pregnancy, they also “increased their funding for pregnancy-care centers and women’s care centers to $100 million, and other states have a version of that.” She said states have also gotten creative in their approach to helping women, pointing to Mississippi’s corporate tax credit for contributions to pregnancy-care centers. 

Lizzie Whitmarsh, director of communications at Ohio Right to Life, told the Register that if and when Roe falls, Ohio Attorney General Dave Yost would file a motion so that the state’s heartbeat law is no longer held up in court but able to go into effect. Additionally, the state has the Human Life Protection Act, a bill that’s working through the state House and Senate and likely to be signed into law, which “ends abortion effectively from the moment of conception, whether it’s chemical or surgical, in the state of Ohio.” 

The measure is very similar to other human-life protection acts throughout various states, including Louisiana and Tennessee.

Whitmarsh said that the state is also concerned with providing resources to women in need, noting that Gov. Mike DeWine “has allocated over $7 million in funding towards our pro-life pregnancy centers throughout the state; we have over 120 in Ohio.” She also applauded Ohio Treasurer Robert Sprague’s Family Forward Program, which “works to reduce costs for couples that are looking to adopt.” 

Whitmarsh said Ohio Right to life is focused on “ending the practice of abortion,” and then “going forward we just want to bring the focus back to families and provide help and support for the women and children that find themselves in need.”