By Michael D. Potter, Research Editor, Civil Rights Law Journal and J.D. Candidate, Class of 2023 at George Mason University’s Antonin Scalia Law School
Dobbs v. Jackson Women’s Health Organization illuminates a key constitutional truth—abortion lacks traditional roots in our Constitution’s system of ordered liberty that other unenumerated rights enjoy. Now, the American people and their representatives are tasked with discussing and determining the proper roles abortion and motherhood should play in civil society.
But with a fifty-year old web of jurisprudence now unspun, what becomes the status quo state-by-state? Anticipating this eventuality, thirteen states have passed conditional abortion laws to both protect human life and place constituents on notice. A conditional law is a law that remains legally inactive until some statutorily enumerated event occurs. These conditional laws enact regulations protecting preborn life when, among other conditions, Roe v. Wade (1972) and/or Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) are overturned. How these laws activate depends on where you live.
The chart below organizes these thirteen states by their statutory code, how the law is activated, and when they become effective. Some laws may become effective when Roe or Casey is struck down alone. Others require certification by a state’s attorney general to a legislative counsel or other appropriate legislative committee that Roe and/or Casey is overruled. Following either event, said laws may also activate either immediately or within a set time.
Arkansas
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| Ark. Code. Ann. § 5-61-304 | No | Yes | Immediately |
Idaho[1]
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| Idaho Code § 18-622 | Yes | No | 30 Days |
Kentucky
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| Ky. Rev. Stat. Ann. § 311.772 | Yes | No | Immediately |
Louisiana[2]
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| La. Stat. Ann. §§ 14:87.7; 40:1061 | Yes | No | Immediately |
Mississippi
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| Miss. Code Ann. § 41-41-45 | No | Yes | 10 Days |
Missouri
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| Mo. Rev. Stat. § 188.017 | No | Yes | Immediately |
North Dakota[3]
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| N.D. Cent. Code § 12.1-31-12 | No | Yes | 30 Days |
Oklahoma
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| Okla. S.B 1555 (2021) | Yes | No | Immediately |
South Dakota
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| S.D. Codified Laws § 22-17-5.1 | Yes | No | Immediately |
Tennessee
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| Tenn. Code Ann. § 39-15-213 | Yes | No | 30 Days |
Texas
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| Tex. Health & Safety Code § 170A.007 | Yes | No | 30 Days |
Utah
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| Utah Code Ann. § 76-7a-201 | No | Yes | Immediately |
Wyoming[4]
| Statute | Effective if Roe/Casey Overruled? | Effective if AG/Leg-Certified? | Effective Date After Activated? |
| Wyo. Stat. Ann. § 35-6-102 | No | Yes | 5 Days |
Americans United for Life is pleased that these states are prepared to protect pregnant mothers and their children with strong pro-Life protections after Roe. As Mississippi argued before the Supreme Court in Dobbs, limiting abortion would protect three compelling interests: an unborn child’s fundamental right to life; a mother’s loss of autonomy under unscrupulous reproductive care practices[4], and the medical profession’s abiding integrity from the care it provides and from those who rely on it. We welcome the chance to listen and discuss key perspectives long stymied by Roe’s legacy. We hope Dobbs opens a new chapter in American civil society where all of us help the sanctity #of life and the dignity of parenthood to flourish.
Footnotes
[1] Idaho has another abortion law governing fetal heartbeat that will only become effective 30 days after a federal appellate court confirms the law is valid under the federal Constitution. Idaho Code §§ 18-8805(1).
[2] Louisiana’s civil abortion law, upon Roe/Casey’s overruling, will supersede its existing heartbeat law. La. Stat. Ann. § 40:1061.1.3. The state also empowered its health department to order outpatient abortion clinics to close if Dobbs overrules Roe and restores state power to prohibit or limit abortion. La. S.B. No. 342, Act No. 545, § 2175.9
[3] North Dakota has an additional abortion law governing dilation and evacuation (D&E)—partial-birth abortion—abortions—that will become effective according to overlapping procedures of N.D. Cent. Code. § 12.1-31-12.
[4] After Dobbs was announced, the Wyoming attorney general would have 30 days to certify Dobbs’ result to the governor or Wyoming’s joint judiciary committee. Next, the Governor certifies Dobbs’ holding to Wyoming’s Secretary of State. The law then takes effect five days after the Governor’s certification.
[5] See generally Catherine G. Foster, Unsafe: America’s Abortion Industry Endangers Women 84-191 (Ams. United for Life ed., 3d ed. 2021).
