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Why Delaware can expect to retain abortion rights if Supreme Court overturns Roe v. Wade


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Abortion rights in Delaware is expected to be unaffected by the outcome of the case heard by the U.S. Supreme Court on Wednesday, which could result in curtailing the right to an abortion in the U.S.

But protections aren't guaranteed depending on how the court rules, some advocates say.

While other states could lose abortion rights without Roe v. Wade, Delaware is considered safe for those seeking an abortion regardless of Supreme Court rulings because the state added protections in its own laws nearly four and a half years ago.

The Supreme Court case, Dobbs v. Jackson Women’s Health Organization, concerns a Mississippi law passed in 2018 that bans most abortions after 15 weeks of pregnancy.

The court, which holds a conservative majority, will consider not only whether to uphold the Mississippi law but whether to overturn Roe v. Wade, the 1973 decision that made abortion a constitutional right. The court is expected to decide the case early next summer.

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What's the abortion law in Delaware?

In 2017, Democrats in the General Assembly passed a law that asserted Roe v. Wade protections if the federal case is overturned. At the time, they feared the opinions of Supreme Court justices who were yet to be appointed by President Donald Trump.

During his four years, the former president appointed three justices to the nine-person bench, tipping the scales so that conservatives hold a 6-3 advantage for the first time in decades.

Senate Majority Leader Bryan Townsend, a Democrat from Newark who sponsored the 2017 legislation, said Delaware's protections could be in jeopardy if the court rules that the U.S. Constitution guarantees rights to a fetus even at conception.

Such a ruling would be more aggressive than overruling Roe v. Wade, he said.

"If they were to go that far with their ruling — which they could — then it could overrule every single abortion protection across the United States," Townsend said.

Democrats have gone to additional lengths this year to increase protections for people seeking an abortion by erasing a 19th-century law that classified abortion as manslaughter and a felony. Gov. John Carney signed that bill in September.

Abortion rights advocates argued that, even though the criminal law didn't appear enforceable, it may have come into question should Roe v. Wade be overturned.

"Delaware is in a strong position in regard to abortion access thanks to lawmakers and advocates who recognized the importance of securing this care," said Planned Parenthood of Delaware President and CEO Ruth Lytle-Barnaby in a statement on Tuesday. "Planned Parenthood of Delaware is grateful to have strong leaders fighting for access."

More: Supreme Court signals support for Mississippi 15-week abortion ban with Roe v. Wade in balance

What's next for abortion rights in Delaware

The added protections don't appear to be in danger in Delaware as Republicans hold an ever-dwindling minority in the 62-person Statehouse. For the past several years, the party has tried annually to limit abortion rights only to have Democrats block the bills.

Delaware is one of 15 states plus the District of Columbia that have laws protecting the ability to have an abortion, according to the Guttmacher Institute, an abortion-rights think tank. Maryland, New York and Connecticut also have protections.

Other states could see a much different scenario should Roe v. Wade be overturned. According to Planned Parenthood, more than 36 million people in the U.S. who can become pregnant could lose access to abortion services.

Politicians have introduced more than 600 abortion restrictions and passed 100 in 2021 alone, according to Lytle-Barnaby. Conservatives and anti-abortion advocates have become more hopeful that passing such laws could lead to legal challenges that would eventually lead to the overturning of Roe v. Wade.

"We are hopeful the Supreme Court will stick with the clear precedent and uphold Roe in its entirety, but regardless, the fight for reproductive rights will continue until every individual has the right to bodily autonomy," she said.

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USA Today contributed to this report.

Sarah Gamard covers government and politics for Delaware Online/The News Journal. Reach her at (302) 324-2281 or sgamard@delawareonline.com. Follow her on Twitter @SarahGamard.