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The more conservative Supreme Court will likely embolden lawmakers to pass restrictions that could run afoul of Roe v. Wade.
Statehouses are once again the frontlines in the nation’s decades-long debate over abortion access, with state legislatures across the country prioritizing the passage of tighter restrictions on the procedure in 2021.
A wave of bills restricting abortion access are expected to emerge in the coming months, in some of the first legislative sessions after Justice Amy Coney Barrett joined the Supreme Court. Barrett, President Donald Trump’s third pick on the court, has previously written in support of abortion restrictions and has suggested that Roe v. Wade, the landmark 1973 case, was wrongly decided.
A more conservative Supreme Court, analysts say, will likely embolden more state lawmakers who oppose abortion to pass legislation that might run afoul of Roe v. Wade.
“States that are hostile to abortion rights are even more eager to demonstrate that hostility,” said Jessica Arons, a senior counsel with the American Civil Liberties Union, which has sued in favor of abortion access.
In his 2020 campaign, President-elect Joe Biden promised to enact legislation that would enshrine Roe v. Wade’s protections and undo a ban that prohibits Medicaid and other federally-funded programs from paying for most abortions.
In reality, though, those bills would be exceedingly difficult to get through Congress — even with Tuesday’s Democratic victories giving Biden majorities in both the House and Senate.
Biden does have the power to rescind some of the anti-abortion regulations implemented by Trump, such as a ban that blocked Planned Parenthood from participating in the federal program that funds family planning efforts for low-income people. But the majority of legislative change will likely come from states.
State lawmakers across the country have been preparing legislation that would undercut abortion rights — resulting, experts say, in an even deeper geographic divide when it comes to who can readily, safely access abortion.
In Texas, state Rep. Steve Toth has pre-filed a ban on abortions at 12 weeks post-fertilization. Currently, the state bans abortion at 20 weeks.
Kentucky’s House Judiciary Committee has already passed a bill that would allow the state’s more conservative attorney general to regulate abortion clinics instead of Democratic Gov. Andy Beshear. The state’s Senate is also expected to push forward a bill that was vetoed last session, which would require physicians performing abortion to “preserve the life and health of a born-alive infant” — even though infants are already required to be given any necessary health care under existing law.
In Montana, which has a newly-elected anti-abortion governor, lawmakers are putting forth legislation to ban abortions at 20 weeks, as well as to ensure that medication abortions — which can be performed up to 11 weeks since the last menstrual period, and are done by taking two pills days apart — must be administered in person, by physicians, said Katie Glenn, the government affairs counsel at Americans United for Life. (Medical experts including the World Health Organization and the National Academies of Science, Engineering and Medicine hold that a physician’s assistant or nurse practitioner can safely administer the first pill in medication abortions. The second pill is typically taken at home.)
“In both directions, we’ll see lawmakers really thinking about … if we have greater ability to legislate in this area,” Glenn said. In Montana, specifically, she imagines, “we’ll see bold action from lawmakers to do something.”
And in Ohio, a bill awaiting the governor’s signature would prohibit medication abortion unless performed in person by a physician — effectively outlawing medication abortions that are performed through telemedicine, an option that has gained steam in the pandemic. The state’s governor, a Republican, also just signed a law to require that fetal remains from any surgical abortion be cremated or buried.
Other bills are likely to emerge in coming months, but it’s not clear yet which of those will reach governors’ desks, said Laurie Sobel, Associate Director for Women’s Health Policy at the Kaiser Family Foundation, a nonpartisan health research organization. And other states, such as Massachusetts, are going the opposite direction: passing laws that would expand access to abortion.
Many of the proposed restrictions, as well as other current state laws, would violate the standard set in Roe v. Wade — and could, in the next few years, tee up a Supreme Court challenge that could ultimately result in weaker federal abortion protections, or even eliminating the Roe v. Wade standard entirely. (So far, 16 states have laws that would immediately ban all abortions if Roe v. Wade was overturned.)
Currently, Sobel said, there are 17 pending abortion cases that could be argued before the high court. The court is still deciding whether to hear a challenge to a 15-week ban on abortions from Mississippi, and if that case is not taken up for this term, the court could decide to hear any number of abortion challenges in 2022.
How the court might rule is hard to predict, legal experts agree. But the ultimate result is, in all likelihood, a furthering of the United States’ patchwork system, where access is protected in some states by governments that have passed their own abortion protections, but is unavailable in others.
“It’s already very divided. Access to abortion is hard in many states and very limited,” Sobel said. “If there were further restrictions that were permitted, it might make it completely unavailable in those states — but it’s not like it’s easy right now.”
Shefali Luthra covers the intersection of women and health care. Prior to joining The 19th she was a correspondent at Kaiser Health News, where she spent six years covering national health care and policy.