Massachusetts is on the verge of passing the NASTY Women Act. That is, the Negating Archaic Statutes Targeting Young Women Act, which will repeal a 173-year-old state law that prohibited "procuring a miscarriage."
Despite abortion being legalized by the U.S. Supreme Court 45 years ago, the antiquated law has remained on the books. The state's Republican governor, Charlie Baker, has a history of supporting abortion rights and has pledged to sign the bill.
But Massachusetts is just one of 10 states with an archaic abortion ban still on the books. All pre-date Roe v. Wade, the 1973 Supreme Court case that legalized abortion.
Of course, these archaic laws cannot currently be enforced. But there's a sudden movement among abortion advocates to wipe them clean in case the Supreme Court overturns Roe v. Wade in the future. With the retirement of Justice Anthony Kennedy -- and President Trump's nomination of Brett Kavanaugh -- many believe the Supreme Court is set to lean more conservative, and therefore is more likely to rule against abortion rights.
The other states with pre-Roe laws that criminalize abortion are: Alabama, Arizona, Arkansas, Michigan, Mississippi, New Mexico, Oklahoma, West Virginia and Wisconsin.
"How quickly those states would enforce those laws [if Roe v. Wade is overturned] is really going to vary," says Andrea Miller, president of the National Institute for Reproductive Health.
Alabama and Arkansas, for example, have passed extensive restrictions on abortion in recent years, so it’s more likely that they would enforce a pre-Roe abortion ban.
But, Miller adds, "Rhode Island and New Mexico might be less inclined." Lawmakers in those two states have committed to repealing their laws when the legislative session starts up again next year.
In Rhode Island, both Democratic Gov. Gina Raimondo and the leading Republican candidate for governor have expressed support for abortion rights, and Democrats far outweigh Republicans in the state's legislature.
The New Mexico Legislature leans Democratic. The current governor, Republican Susana Martinez, opposes abortion but is not eligible for reelection. A bill to repeal the state's archaic abortion law was introduced last year. It failed to make it to the governor's desk, but the bill's author, Democratic state Rep. Joanne Ferrary, plans to make it a priority in January.
“I will be introducing this bill again in 2019 with the new governor -- hopefully Michelle Lujan Grisham, who is also committed to protecting safe and legal abortions,” she told the New Mexico Political Report.
Meanwhile, four states -- Louisiana, Mississippi, North Dakota and South Dakota -- have "trigger laws" that would automatically ban abortion if Roe is overturned.
State Abortion Laws
||Protections if Roe overturned|
||Pre-Roe ban AND protections if Roe overturned||
||Pre-Roe ban AND trigger law|
For their part, critics of abortion rights argue that the recent push to roll back pre-Roe laws is nothing more than political posturing.
“We’re a very long way from overturning Roe v. Wade. To listen to some of the rhetoric, you will think that the day after Kavanaugh is confirmed, it will be overturned,” C.J. Doyle, executive director of the Catholic Action League of Massachusetts, told TIME.
In New York, a battle is brewing to overturn its pre-Roe law, which outlawed abortion past 24 weeks. It was passed in 1970 and was considered revolutionary at the time because of the high week limit and because it allowed women from out of state to receive the procedure there. But for progressives in the state, the law hasn’t kept up with the times and should be repealed.
The Democrat-controlled House passed a bill to overturn the law last year. Republicans in the Senate didn't bring it to the floor for a vote. This year, Democratic Gov. Andrew Cuomo unsuccessfully urged a special session to repeal the law. The fate of the archaic law depends on whether Republicans keep their majority in the state Senate after the November midterm elections, says Miller, the president of the National Institute for Reproductive Health.
Come January, states on each end of the political spectrum are expected to take up more abortion legislation, widening the chasm between women's health in blue and red states.