A Preview of What Happens at State Level If Roe v. Wade Falls

Virginia Allen /

What will happen at the state level if the Supreme Court overturns its 1973 ruling in Roe v. Wade? Can we expect more lawsuits like those we’ve seen in Kentucky and other states that recently passed pro-life legislation? 

Americans are waiting for the Supreme Court to announce its ruling in the case of Dobbs v. Jackson Women’s Health Organization, which could overturn Roe and send the issue of abortion back to the states to regulate.  

In anticipation of a change in federal abortion law, pro-life leaders are seeing a “ton of activity at the states,” says Sarah Parshall Perry, a senior legal fellow at The Heritage Foundation. (The Daily Signal is Heritage’s news organization.)

Perry joins this episode of “The Daily Signal Podcast” to explain what likely will happen in conservative and liberal states across the country if the high court strikes down Roe.

Also on today’s show, we cover these stories:

Listen to the podcast below or read the lightly edited transcript:

Virginia Allen: Americans across the country are waiting for the Supreme Court to rule on the Dobbs case, which could overturn Roe v. Wade. And really, on both sides of the aisle, what we’re seeing is that it seems like people do feel like Roe v. Wade will be overturned. But then, of course, the question is, what happens at the states?

Sarah Parshall Perry: Yes.

Allen: So joining us here today is Sarah Parshall Perry. She is a senior legal fellow at The Heritage Foundation. Sarah, welcome back to the show. Thanks for being here.

Perry: Thanks for having me.

Allen: All right. So, I want to dive into this discussion at the state level. And I think the best way to do that is, first, to start with what we have recently seen played out in the state of Kentucky. We just saw that a federal judge temporarily blocked some pro-life legislation in the state of Kentucky. Interestingly enough, this is a Trump-appointed judge.

Perry: Right.

Allen: And these were laws that put a number of regulations in place to limit abortion access, including regulating medical abortions. Sarah, this instance that we have seen played out in Kentucky, how is this legislation in Kentucky different from the pro-life laws that we are increasingly seeing passed across other states?

Perry: It’s actually not very different. I think the most surprising element of this is the fact that it was indeed a Trump-appointed judge. And she, here in this case, decided to issue a temporary injunction.

Now, I think that’s critical for the listeners to know, because it’s really set to expire after two weeks. So this isn’t a permanent blocking of the Kentucky law. In fact, it simply is giving Planned Parenthood and the abortion providers in that state an opportunity and enough time to get up to speed because HB 3, the law at issue, is one of those laws that contains quite a number of restrictions, as you mentioned—not only disposal of fetal remains, but certain reporting requirements.

And for these abortionists to switch their method of doing business is going to take them a little bit of time. So she mentioned it was a good policy statement, policy position, and she was actually doing this for the benefit of administration, to give them enough time to make sure they’re in compliance with the law.

So it really wasn’t as negative a law as those individuals on the left had been presenting it to be. In fact, it is one of those particular judicial decisions that we don’t have an issue with, even though it was a temporary blocking of the law.

Allen: OK. So what happens next then? Did the judge make a mistake here? Do you think that this was the correct action to take? And what happens when these two weeks are up?

Perry: Well, when the two weeks are up, it will probably end up right back in her courtroom again.

All of the abortionists in the state will have to be in compliance with the law. Because again, the House and the Senate overrode the governor’s veto in that state. So this is a lawfully enacted law. It will be on the books. And so she will make another determination as to whether or not these individual abortionists are in compliance with the law.

So I think everyone here is spinning their wheels a little bit, waiting for the Supreme Court’s ultimate disposition of whether or not there is a constitutional right to abortion in the Dobbs v. Jackson Women’s Health [Organization] case.

Allen: I see.

Perry: So we’ve seen a ton of activity at the states. There are 17 states with pro-life laws that have been enacted, either previously existing laws or new laws that anticipate an overturning of Roe. And there are about 20 states that have themselves opened up access to abortion. California, among them, has presented an opportunity for abortion tourism. In other words, “We will cover your travel cost to come and get an abortion.”

If—we are hopeful, of course—Roe v. Wade is overturned, that would send the primary authority on regulation of abortion back to the states. Because under the 10th Amendment, any individual right, any duty not enumerated specifically, is relegated to the states. One of those is generally considered to be medicine.

So we’re hopeful that these state legislatures will continue to do and continue to show the kind of fortitude that they showed in Kentucky.

That, for me, is an encouragement because it indicates that the elected representation that happens at the level closest to where these women have a need, whether they find themselves in an unforeseen pregnancy or they find themselves up against said untenable choice of what to do afterward, whether they need crisis pregnancy planning services, whether they need adoption services, the individuals best suited to help with those decisions are the elected representatives right there at the state level.

So Kentucky did the right thing. And in this instance, this particular judge is trying to make sure that those abortionists are actually up to speed on the law and in compliance with the law. It’s a temporary policy, good policy decision, that, quite frankly, she will be, I think, in the future, very strict in ruling on.

Allen: As we look at what’s happening in other states—you mentioned that 17 states have moved forward with very pro-life legislation. What is the style of that legislation? Is it similar to what we’ve seen in Kentucky? Are those mainly “heartbeat” bills?

Perry: They run the gamut. There have been a number of states that have copied the Texas SB 8 model, and that’s the civil enforcement mechanism that allows private citizens like you and I, if we find out that a prohibited abortion has been taking place, we can actually bring a civil suit for enforcement of that law, but it eliminates any government enforcement.

That has eliminated the opportunity for the courts really to get to the heart of the issue, which is why Texas’ SB 8 law has been three times before the Supreme Court, begging them, “You have to provide us permanent injunctive relief and you have to overturn the law.”

But so far, not only have they refused to do that, other laws have actually taken a copycat model and have found that to be a very effective way of restricting and even at some cases eliminating abortion altogether.

Some other states have taken gestational age approaches much like Mississippi’s law. That’s actually at issue in the Dobbs case, where it is 15 weeks and after that the abortion is prohibited.

Some have included fetal dignity laws, and those are laws that are very precise on the disposition of fetal remains. And they make sure that fetuses are treated with the humanity that is due them as unborn children.

So, they have a variety of effects to them, but I’m seeing increasing boldness at the state level from these legislatures who realize, in very short order, these important decisions could be coming back to them permanently, and if that’s the case, they’re going to have to be ready.

Allen: Yeah. I recently stumbled upon an Atlantic article that the headline reads, “There’s No Knowing What Will Happen When Roe Falls.” And we’re talking about that right now.

Perry: Yeah.

Allen: What is the reality of what will happen? I want to dive into that a little bit deeper, but first, big picture, Sarah, in your professional legal opinion, will we see Roe fall?

Perry: Well, I think we can take a couple of hints from oral arguments—and I tell people it’s always dangerous to prognosticate, but I’m cautiously optimistic. I do think, based on what we heard from at least five of the justices, they are keen to send abortion back to the states.

The one that concerns me the most is Chief Justice John Roberts, who has voted with the liberals as often as he has voted with the conservatives. And he seems to want to take a middle-of-the-road approach. In other words, not just keep Roe or not just overturn Roe, but find a way somehow to keep both the Mississippi statute and to keep Roe v. Wade as well.

Now, it doesn’t seem to me, based on what the specific attorneys were requesting—which is, in other words, “Throw Roe into the trash can or keep it and make sure that we all understand it’s good law.” None of them seems to be fond of that particular perspective, saying, abortion jurisprudence is a mess in this country, it always has been.

Justice [Antonin] Scalia said this never should have gone before the courts, this was always an issue for the states. But he is the one who I think might try to persuade a middle-of-the-road approach, which I think lacks a sort of legal and moral conscience and fortitude, unfortunately.

We know where the liberal block will come down and [Justice Sonia] Sotomayor said, specifically, “People have relied on this for 50 years.” But [Justice Brett] Kavanaugh retorted with, “Well, yes. People also relied on Plessy v. Ferguson, thinking ‘separate but equal’ was constitutional, and we overruled that in Brown v. Board of Education.”

So some very big cases in American case law have been the result of overturning prior bad precedent. There is every reason to overturn Roe, the question is whether or not I believe Chief Justice Roberts has the courage to do it.

Allen: So, let’s say it is overturned, it goes back to the states, then is the next decade just going to be full of lawsuits at the state level with these various pro-life, pro-abortion cases getting debated?

Perry: I think they absolutely will see an uptick in litigation, but in preparation for that, that’s why we’ve seen so much activity at the state level. In fact, there’s been an increase, up to 400 attempted regulations or passed regulations just in this past calendar year alone.

So we’re seeing a lot of scarring activity on both sides, not just on the pro-life side, but on the pro-abortion side as well. And what they’ll need to do is make sure that it is consistent with the constitutional authority of states. In other words, can states pass laws related to medicine and health care? The answer is yes.

And then we’ll also see them make claims based on whether or not their own state constitutions provide or restrict a right to abortion. That federal right to abortion that allegedly appears in the Constitution, if Roe goes, will no longer be at issue because the court will have said, “No, the Constitution doesn’t provide for this right.”

So we may see legislation both at the state level and at the federal level. At the federal level, the allies of ours on Capitol Hill can pass legislation if they use particular enumerated powers. For example, the commerce clause.

We know that we’ll see an increase in the [Food and Drug Administration’s] approval and regulations of chemical abortions, of abortifacients, because that seems to be, by all accounts, the next wave on a great deal of this—that if it’s restricted in the states, these women will be using mail-order services or telehealth to be able to access abortifacients and still accomplish what we’re hoping doesn’t get accomplished at all.

This administration in particular loves to use the regulatory state. It loves the administrative state. It loves to use federal agencies to accomplish its goals. I have no doubt that the FDA will become very active in making sure abortifacients are rapidly approved and they are sent over state lines to these women.

So that, I anticipate, is the next legal frontier we’ll have to grapple with.

Allen: So then, you think states will be trying to pass laws to prevent that from happening? Pro-life states?

Perry: Yes, absolutely. And that sets up a very interesting question that we’re actually investigating right now: With the federal preemption doctrine as a general rule, federal laws trump state rules, but when it’s an agency regulation, does that have the same effect as applied to the states over a legally passed and enforceable law? We don’t yet know. What’s the power of a federal regulation over a state’s opposite law? And that’s something we’re currently investigating and researching right now.

Allen: As you’re talking, I’m thinking, “Wow, so Roe v. Wade, if it is overturned, that’s just scratching the surface.”

Perry: Yes.

Allen: And it sounds like we have a very, very long road ahead.

Perry: Yes.

Allen: A lot of questions, a lot of unknowns, and a lot of states having to grapple with where they stand on this issue.

Perry: Yeah. And there are 2,700 crisis pregnancy centers in the United States, that is three times as many abortion clinics. So the resources are there to help support these women when they find themselves in this untenable situation.

And between the courage of state legislatures and the opportunity to use charitable services to support these women, I think it really pertains a tremendous shift in where we go as a country. And we can stand in the gap, as we’ve always wanted to do, but might be able to do more conclusively if Roe v. Wade goes.

Allen: Is there a way to stand for life, that life can be furthered in a state like California? Where you mentioned that they have already said, “Please come here and have your abortion here if Roe v. Wade is overturned.” How do we further life there?

Perry: I think that’s a very, very good question. And that’s why I encourage everybody to exercise their civic duty and vote. It is truly up to these state Houses to make sure that the voices of the individuals who elect them are represented in their House and in their Senate.

That would be the only backstop against someone like [California Gov.] Gavin Newsom, who is already commended to using a Texas SB 8-style law to prevent certain handgun use in the state. And this is where, of course, you get to the issue of, can a private individual prevent you from practicing a constitutional right? We anticipated he would take that approach after the Supreme Court refused to stop SB 8.

So in a state like California, it will be easier to get an abortion, unless people stand up and they elect not only a governor, but representatives and senators who are willing to stand for life. It will require that kind of a sea change.

Allen: Sarah Parshall Perry, a senior legal fellow here at The Heritage Foundation. Sarah, thank you so much for joining the show.

Perry: Thanks for having me.

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