The possibility that, if confirmed to the U.S. Supreme Court, Brett Kavanaugh could help dismantle Roe v. Wade raises the stakes in gubernatorial races across the country this year.
That’s because if Roe is overturned, access to abortion will be determined by state law, giving both governors and legislatures enormous power over the rights and health of women everywhere. People in nearly half the states would be at risk of losing access to abortion, according to the Center for Reproductive Rights, due to anti-abortion laws already on the books. Four states have enacted “trigger bans” that would immediately outlaw abortion if Roe were overturned. An additional 10 states have pre-Roe bans (also known as “zombie laws”) still on the books—and Louisiana has both. Some zombie laws could go into effect immediately, while others would require further action before becoming enforceable.
But the future of reproductive rights in six states likely hinges on who is elected governor in November, as a state’s top lawmaker is instrumental in the decision to keep pre-Roe bans intact or sign abortion rights into law.
President Trump vowed on the campaign trail to appoint justices to the Court willing to overturn Roe. His pick to replace Justice Anthony Kennedy has signaled in past rulings that he would vote against abortion rights, worrying abortion rights advocates that Trump has followed through on his campaign promise. That means governors could soon be in a position to determine whether or not abortion is a criminal offense.
Here are the states where abortion is essentially on the ballot in this year’s gubernatorial races.
The right to a legal abortion is at “high risk” in Kansas should Roe fall, according to a state-by-state analysis by the Center for Reproductive Rights. That’s because of the state’s anti-choice majority in the legislature and the state code’s recognition of “fetal rights.” A 2007 law that defines murder and other violent crimes says that the rights guaranteed to any person also extend to an unborn child, which the law defines as “a living individual organism” in utero “at any stage of gestation from fertilization to birth,” though it protects against being used against those who have an abortion. A subsequent law passed in 2013 includes broader “personhood” language. This language could open the door to full rights of so-called personhood for blastocysts, embryos, and fetuses, making abortion illegal under any circumstances, including during imminent threats to the life of a pregnant person.
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Though abortion is currently legal nationwide, Kansas lawmakers have already begun to chip away at that right. Abortion is banned after 20 weeks of pregnancy, and anyone seeking the procedure must obtain an ultrasound and counseling beforehand. Telemedicine abortion—through which a doctor can provide medication abortion to a patient via remote consultation—is also illegal in the state, despite the safety and efficacy of this method in early abortion care.
In the absence of Roe, the law’s protection of “fetal rights” could mean the state could begin prosecuting anyone who obtains an abortion, unless abortion rights are codified into state law—and the next governor could potentially help lead the fight to pass such legislation. Democratic gubernatorial nominee Laura Kelly will face Republican Kris Kobach on the November ballot. Kelly has the endorsement of reproductive rights groups because of her record voting to uphold abortion rights while serving in the Kansas State Senate.
Although Kobach described himself as pro-choice nearly two decades ago, he says he’s changed his views and has vowed to make abortion illegal in Kansas if elected. “Roe v. Wade‘s days are numbered and Planned Parenthood will be coming state by state to legalize abortion. When they come to Kansas I will fight back and protect Kansas values,” Kobach tweeted last month. “I am 100% pro-life and I have been endorsed by Kansans for Life.”
The Cook Political Report considers the race a toss-up, and Democrats see Kobach’s nomination as an opening to flip the Kansas governor’s mansion from red to blue. As the New York Times notes, “A Kobach candidacy, while pleasing to his party’s most conservative core, would energize liberals and moderates” both in the gubernatorial race and in certain U.S. House districts.
Michigan has a pre-Roe abortion ban on the books, so the next governor could ultimately decide whether or not the procedure is legal within the state’s borders by choosing whether to enforce that law or lead an effort for its repeal. The 1931 law, though currently not enforceable, makes it a felony “to procure the miscarriage” of a fetus unless the pregnant person’s life is in danger.
Although a campaign spokesperson for Republican gubernatorial nominee Bill Schuette told the Detroit News that Schuette wouldn’t engage “in hypotheticals about future Supreme Court decisions,” he said he would “enforce the laws on the books, just as he does now as attorney general” if he was elected governor. Meanwhile, Democratic nominee Gretchen Whitmer has promised, if elected, to defend a woman’s right to choose and released a plan for how she would do so if the Supreme Court sends the issue back to the states. Step one: moving to repeal the so-called “zombie law” that would criminalize abortion.
“As governor, should Roe v. Wade be overturned, Gretchen will work with everyone who wants to protect and expand women’s reproductive health by passing legislation that will enshrine Roe v. Wade into state law,” said Nicole Simmons, Whitmer’s press secretary, in a statement to Rewire.News. “Right now, she’s working to pull every Democrat across the finish line this November so we can get it done and protect women and families across the state.”
The current governor, Republican Rick Snyder, is retiring as the 10th least-popular governor in the nation following the Flint water crisis. In a poll taken by NBC News and Marist College before the August 7 primary, Whitmer beat Schuette in a hypothetical matchup by 9 percentage points.
Oklahoma’s abortion restrictions include forced counseling followed by a 72-hour waiting period, a ban on telemedicine abortion, and a ban on abortions after 20-weeks of pregnancy. But if Roe is overturned, that would trigger a law dating back to 1910 that criminalizes abortion except in cases of life endangerment.
Ahead of the Republican primary runoff election on August 28, neither GOP candidate has explicitly spoken about the pre-Roe ban. Both have vowed to restrict access to abortion, however. Former Oklahoma City Mayor Mick Cornett, who received more votes in the June primary, said in a Republican debate in May that he would sign legislation banning all abortions except in cases of rape, incest, or life endangerment, NewsOK reported.
His runoff opponent, Kevin Stitt, said in the same debate that he wouldn’t sign legislation that allowed abortion under certain circumstances because he believes life begins at conception. In a previous forum, he said that he wants to make Oklahoma the most restrictive state in the nation when it comes to abortion.
While the Democratic nominee for governor, former Oklahoma Attorney General Drew Edmondson, hasn’t been vocal about protecting abortion rights, his campaign manager told NewsOK last month that he believes women should be able to make their own reproductive health decisions. “Those decisions are intensely personal and should not involve the Legislature,” his campaign manager said. Edmondson’s campaign did not return Rewire.News’ request for comment.
Although Democrats have flipped four state legislative seats since the 2016 election, the Cook Political Report rates the Oklahoma governor’s race as solidly Republican.
The Center for Reproductive Rights considers Pennsylvania “at risk” of banning abortion in the absence of Roe because state policy extends “equal protection of the laws” to the “unborn,” and states that Pennsylvania encourages “childbirth over abortion.” Similar language expanding the rights of fetuses has already caused the number of people in the United States sent to jail because of their actions during pregnancy to rise even with Roe intact, according to a 2008 study published by the University of Minnesota. Without Roe, Pennsylvania’s Republican-majority state legislature could enforce a fetus’ “equal protection” by outlawing abortion altogether.
In fact, efforts to restrict abortion access are already underway. Democratic Gov. Tom Wolf vetoed a 20-week abortion ban in December that is fully supported by his Republican gubernatorial challenger, former state Sen. Scott Wagner. Earlier this year, Wagner supported another effort to ban abortion at the sign of a heartbeat—before many people realize they are pregnant—that Wolf promised to veto should it reach his desk. And Wagner co-sponsored a bill last year that sought to defund Planned Parenthood.
Wagner’s record shows he’s committed to restricting access to abortion, though he hasn’t taken an official stance on what action he would take if Roe fell. When local radio station WHYY asked what he would do if an abortion ban came across his desk last month, he responded: “It may, and whatever happens, happens. Right now, in this interview, I’m not committing to anything.” Wolf, on the other hand, promised to veto any abortion ban.
A June poll conducted by Franklin and Marshall College gave Wolf a 19-point lead over Wagner, with 45 percent of registered voters saying they believe Wolf is doing a good job as governor.
Rhode Island lawmakers have twice failed to pass legislation codifying abortion rights into state law, and a pre-Roe ban on abortion remains on the books. Though it was once struck down in court, the fall of Roe would allow the state to seek a court’s approval to begin enforcing it, according to the Center for Reproductive Rights.
Republican Allan Fung, the current mayor of Cranston, is incumbent Democratic Gov. Gina Raimondo’s strongest challenger ahead of the September 12 primaries. Raimondo beat Fung in the 2014 gubernatorial race by a single-digit margin and similarly leads a recent WPRI 12/Roger Williams University poll by just two points.
Raimondo called out Fung last month for remaining quiet about his views on the Reproductive Health Care Act, the aforementioned legislation aimed at protecting abortion rights in the state in case the U.S. Supreme Court dismantles Roe. In a statement issued to the Providence Journal in May, Fung said he has “always respected a woman’s right to make a medical decision, but with common sense limitations that many of us can agree upon, including a ban on the disgusting practice of late-term abortions, having the option of a plan on the health care exchange that does not include abortion coverage, and parental notification for minors.”
Although Fung hasn’t vowed to criminalize abortion, he and other Republican candidates haven’t backed efforts to codify Roe into state law. Republican candidate and current state representative Patricia Morgan vocally opposed the bill last year, writing in a statement to Rhode Island Catholic that the bill “protects neither mothers nor their babies.”
As governor, Raimondo urged state lawmakers to pass the bill and called the battle over abortion access “more urgent and necessary than ever” after Justice Kennedy announced his retirement, WLNE-TV reports. Nevertheless, NARAL Pro-Choice America claims Raimondo is “mixed-choice,” in part because she signed a budget bill in 2015 that required insurers to offer health plans that omit abortion coverage. Nearly 9,000 Rhode Islanders subsequently lost abortion coverage, Rhode Island Public Radio reported.
Women’s rights activist Gloria Steinem and former NARAL President Kate Michelman also signed an open letter endorsing one of Raimondo’s Democratic challengers—former Rhode Island Secretary of State Matt Brown—specifically because of the current governor’s record on reproductive rights. Raimondo is expected to win the Democratic nomination despite the criticism.
In Wisconsin, a 19th-century abortion ban could once again be enforceable if Roe falls, making it a felony offense to perform an abortion. The procedure is already heavily restricted in Wisconsin; abortion is banned after 20 weeks of pregnancy, and telemedicine abortions are banned outright. Anyone seeking an abortion before 20 weeks must first attend counseling, undergo an ultrasound, and adhere to a 24-hour waiting period. But if the pre-Roe ban sprang back into effect, it would override these restrictions to outlaw abortion altogether—that is, unless the next governor of Wisconsin works with state lawmakers to keep abortion legal.
Republican Gov. Scott Walker is seeking re-election on the same anti-choice platform he’s maintained since taking office in 2011. Although Walker has said he doesn’t foresee the U.S. Supreme Court overturning Roe, he has a long record of supporting legislation to chip away at abortion rights. Under his tenure, the state approved a 20-week abortion ban that doesn’t include exceptions for rape or incest; forced abortion providers to obtain admitting privileges at a nearby hospital (a practice later deemed unconstitutional by the U.S. Supreme Court); withheld all state funds from Planned Parenthood; prohibited private insurance plans from covering abortion services; and restricted abortion coverage for public workers.
His Democratic opponent, Tony Evers, vows to work with the state legislature to undo the pre-Roe ban. “Government shouldn’t be making personal health decisions for women and we shouldn’t be treating physicians like criminals. Women’s lives will be jeopardized,” he tweeted in June. “We must remove this ban from our statutes.”
It’s a close race, as a Public Policy Polling survey released last week showed Evers ahead by five points. Walker was ranked the eighth least popular governor in America by Morning Consult in April, yet the Cook Political Report still considers the race leaning in Walker’s favor.