What Penalties Will Abortion Providers Face if Roe Falls?

As the country’s top court considers reversing federal abortion protections, many states are preparing to effectively ban the procedure within days if Roe v. Wade is overturned.

Clinicians may be left wondering if, where, and how they will be able to provide abortions. In these 24 states, most, if not all, of them will face felony charges.

Last week, a draft of a Supreme Court majority opinion leaked to Politico showed that the court would likely overturn Roe v. Wade, returning the matter of abortion rights to the states. If the opinion becomes final, the federal government will halt its protection of abortion rights, which have been safeguarded in the U.S. for nearly 50 years.

“We should all be outraged that we have folks who have no medical training, no background in medical education, or healthcare at all, who are now making decisions about what we can say, what we can do, and how we provide care for our communities,” Jamila Perritt, MD, MPH, president and CEO of Physicians for Reproductive Health, told MedPage Today.

The legal landscape regarding abortions throughout the country would likely become scattered — parts of the country may consider abortion a crime worthy of nearly a century in jail, while others may consider it a needed medical practice.

Two dozen states already have restrictions that they can enforce if Roe falls, effectively prohibiting abortion in more than half of the country. MedPage Today analyzed the likely abortion restrictions in each state, and tracked potential criminal penalties for healthcare providers who perform these procedures.

Thirteen states have passed “trigger laws,” which are near-total bans designed to go into effect within days if Roe v. Wade is reversed, including Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

Nine states have unenforced pre-Roe bans that will also take effect if the precedent is struck down. Others, such as Georgia, have restrictive abortion laws previously deemed unconstitutional that have been blocked by the courts. If Roe is overturned, however, it’s likely that these states will aim to put those laws into effect.

Most states will prosecute providers — not patients — to deter abortions. But in Louisiana, lawmakers are trying to target patients too, introducing a new bill that will make abortion a homicide in the state if it’s passed.

The expected criminal charges for physicians do not account for the numerous restrictions that states have put in place, which further complicate the procedure. Some have restricted the ways patients can obtain abortion pills, enacted counseling requirements or waiting periods for those seeking care, and limited certain surgical abortion procedures, such as dilation and curettage (D&C).

Perritt said that clinicians who do not provide abortions may think that new restrictions will be unlikely to affect them.

“That’s just blatantly wrong,” she noted. “Politicians legislating medicine is a very dangerous practice, and it’s a slippery slope.”

Abortion bans will affect the work of other clinicians, she added, pointing out that maternal morbidity and mortality rates, fertility care, and miscarriage management will all be affected by the new restrictions.

While clinicians are likely to face criminal charges if the new abortion bans took effect, Perritt said that abortion providers are already familiar with this type of legislative control over their practice of medicine. More importantly, she noted, is the effect that new restrictions will have on patients.

“We only have to look to places like Texas and Mississippi and Alabama to see what the future of our care will look like,” Perritt said. “I, too, am worried as a provider. But my primary concern is about the community I care for.”

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