On Jan. 22, 1973, the U.S. Supreme Court decided Roe v. Wade, which (along with a companion case, Doe v. Bolton) had the effect of invalidating the abortion restrictions of all states. The decision was not close, 7-2, with only Justices Byron White (appointed by President John F. Kennedy) and William Rehnquist (appointed by President Richard Nixon) dissenting.

The dissenting opinions in Roe and Doe both addressed the authority of the states to regulate abortion.

Rehnquist argued that since there was no question about the validity of abortion regulations at the time the 14th Amendment was ratified, the “only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”

White similarly argued in Doe that the “issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.”

In this term, the Supreme Court will revisit that question in Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that prohibits abortions after 15 weeks of pregnancy.

Many states are acting on the assumption that the court will decide to allow the states to regulate abortion again.

For instance, at least six states have enacted legislation this year that would ensure that access to abortion would be secured and facilitated regardless of the Supreme Court’s decision. Colorado recently enacted a law to ensure that abortion is allowed at any stage in pregnancy, as did New Jersey. Maryland’s new law allows non-doctors to perform abortions, as does Washington’s. California has passed legislation to eliminate out-of-pocket costs for abortions and Oregon approved a budget that includes $15 million to pay for abortions, including for individuals traveling from other states.

In contrast, five states have enacted laws this year that would impose new regulations on access to abortion.

Most recently, Florida and Kentucky have enacted laws to prevent abortions performed after 15 weeks of pregnancy (like Mississippi’s law). Arizona adopted a similar law earlier in the year. Idaho passed a law to allow private citizens to bring lawsuits against doctors that perform abortions after the unborn child’s heartbeat can be detected. Wyoming passed a law that would limit abortions but only if the Supreme Court overturns Roe v. Wade (Utah enacted a similar law in 2020).

These laws would only be enforceable if the court decides to reverse or at least adjust its current approach to abortion regulation.

These state actions point to what can be expected if the court does so. Some will allow broad access to abortion and others will enact a variety of limits. One thing is clear: The states appear to be able (indeed, anxious) to legislate on this contentious issue if the Supreme Court allows them to do so.