The abortion issue receives a considerable amount of media coverage. However, media outlets do a consistently poor job explaining the implications of overturning Roe v. Wade. Some outlets hint that when Roe is overturned, abortion would be banned everywhere. Others correctly report that a reversal of Roe would return abortion policy to the states — but use faulty analyses by abortion-rights groups to argue that abortion would quickly be banned in a high percentage of states. Sadly, even some academics have gotten into the act. A recent NBER study that analyzed how the reversal of Roe would impact the abortion rate used an analysis from the Center for Reproductive Rights which claimed that abortion would be banned in 31 states post-Roe. This factoid was repeated bytheWashington Post’s Sarah Kliff.
Unfortunately these media outlets ignore more analytically rigorous studies of the legal status of abortion should Roe be overturned. This spring the academic journal Issues of Law and Medicine published an analysis of Post-Roe abortion policy by attorney Paul Linton. He finds that no more than eleven states — and possibly as few as eight — would have laws on the books that would prohibit most abortions if Roe were reversed. This is because in the years since Roe v. Wade approximately two-thirds of all states have either repealed or substantially amended their pre-Roe statutes restricting abortion. Furthermore, among the third of states that did not repeal their pre-Roe statutes, Linton finds that many of these state statutes would be ineffective because of either exceptions or state constitutional limitations.
Specifically, Linton finds that one state, Rhode Island, enacted a post-Roe statute purporting to prohibit most abortions. This ban is currently not enforceable, but would ban most abortions post-Roe. Linton also finds that four states — Louisiana, Mississippi, North Dakota, and South Dakota — have an abortion prohibition on the books that, by its express terms, becomes effective upon the overruling of Roe. However, Linton states that the Mississippi statute would not be enforceable because of prior state judicial rulings. Linton finds that at most seven states — Arkansas, Arizona, Michigan, Oklahoma, Texas, West Virginia, and Wisconsin — would have enforceable pre-Roe statutes that would prohibit most abortions. In sum, no more than eleven states — and possibly as few as eight — would have enforceable statutes on the books that would ban most abortions should Roe and Casey be overturned.
Now the reversal of Roe v. Wade would still be an important victory for the pro-life movement. It would finally allow some states to enact laws protecting the unborn. It would also lead to a fruitful debate at the national level and in many states about both the morality and desirability of legal abortion. Unfortunately, however, the short-term consequences of a Roe reversal are lost on most journalists. Most mainstream-media outlets are interested in trying to scare moderate voters away from pro-life candidates by implying that a reversal of Roe would lead to a sudden and dramatic shift in abortion policy nationwide.