The Next Chapter for Battles Over Abortion in the States

The U.S. Supreme Court’s repeal of Roe v. Wade ushers in a new phase in the battles over abortion laws, ending the constitutional right to the procedure and leaving the states to wrestle with the contentious issue.

In states with “trigger bans," abortion could be outlawed almost immediately once the court's decision is certified. Most of these state laws contain no provisions for rape or incest and allow exceptions only if the pregnant individual’s life is in jeopardy.

Anti-abortion activists and their Republican allies in statehouses across the nation have been waiting for this moment for decades. Once abortion is effectively outlawed, conservatives say they will turn their attention to strengthening the social services safety net and expanding adoption programs. In the meantime, at least one group has prepared model legislation based on one of the nation’s strictest abortion laws.

Democrats, in response to the ruling, are scrambling to increase abortion access. Legal experts say the ruling will create a patchwork of state laws, with the West Coast and the Northeast becoming havens for those seeking to undergo the medical procedure.  

“Abortion rights now depend entirely on the state where a person resides,’’ said Rebecca Reingold, associate director of the Health and Human Rights Initiative at the O’Neill Institute for National and Global Health Law at Georgetown University. “Many women who are living in poverty, in rural areas, who are women of color, who are young, who are undocumented, and who experience intimate partner violence will find it impossible to access abortion services."

"Ultimately, women who are already marginalized and underserved will bear the primary burden of this decision, with devastating consequences for their health, well-being and dignity," she added.

Reingold’s research found that 58% of individuals of childbearing potential, or about an estimated 40 million people, will likely lose access to abortion in their states. 

Thirteen states have trigger laws on the books intended to ban all or most abortions in the wake of the court’s decision, according to the Guttmacher Institute, an organization that backs abortion rights. Overall, the group predicts that about half of states are certain or likely to ban abortion in the absence of Roe.

"The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion,'' Justice Samuel Alito wrote in the court’s majority opinion. "Roe and Casey arrogated that authority. The court overrules those decisions and returns that authority to the people and their elected representatives."

The court's three liberal justices concluded their dissenting opinion by stating: "With sorrow—for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent. "

Shifting State Laws

At least five other states have older anti-abortion laws on the books, such as an 1849 statute in Wisconsin that makes abortion a felony and a ban on the procedure enacted in Michigan in 1931. Democratic governors in Wisconsin and Michigan have sought to repeal those decades-old statutes, but barring action by the legislature or the courts, they could take effect. 

Wisconsin Gov. Tony Evers, a Democrat, was rebuffed this week when he called lawmakers into special session to repeal the 19th-century statute.

Michigan’s Democratic governor, Gretchen Whitmer, has filed a lawsuit seeking to overturn that state’s 90-year-old ban. “Now is the time to use every tool in our toolbox to protect women and reproductive health care,’’ she said. “I will fight like hell to protect every Michigander's right to make decisions about their own bodies.” 

Elected officials in Democratically-controlled states have worked to strengthen abortion access and protect residents of abortion-restrictive states. 

Illinois has already removed its trigger law and codified the right to an abortion. Gov. J.B. Pritzker said Friday he will call the legislature into special session to “take swift action to further enshrine our commitment to reproductive healthcare rights and protections.”

Also on Friday, within 90-minutes of the release of the court's decision, Charlie Baker, the Republican governor of Massachusetts, issued an executive order declaring that officials will not cooperate with extradition requests involving individuals who come to the Bay State seeking an abortion.

"I am deeply disappointed in today’s decision by the Supreme Court which will have major consequences for women across the country who live in states with limited access to reproductive health care services,'' said Baker, who is not seeking reelection. "The Commonwealth has long been a leader in protecting a woman’s right to choose and access to reproductive health services, while other states have criminalized or otherwise restricted access.” 

Supporters of abortion rights say the ruling, while expected, is a devastating blow to women. And some see the decision as a sign that the conservative majority on the court will turn next to restricting contraception and outlawing marriage between people of the same gender—a concern stoked by a concurring opinion written by Justice Clarence Thomas.

"This ruling will not only result in a patchwork of unequal laws among the states, but more importantly it will result in dangerous and life-threatening situations similar to what this country witnessed countless times in the era prior to the landmark Roe case in which women died or were left severely injured because they could not access the medical care that they should have every right to access on their own,'' said Ned Lamont, Connecticut's Democratic governor.

But for abortion opponents in conservative states such as Texas, which have already enacted strict limits on abortion, the ruling signifies a heady moment of victory.

"The U.S. Supreme Court correctly overturned Roe v. Wade and reinstated the right of states to protect innocent, unborn children,'' Texas Gov. Greg Abbott declared. "Texas is a pro-life state, and we have taken significant action to protect the sanctity of life."

'Not Going Away'

State-level activists say their work isn’t done.

“The pro-life movement is not going away,’’ said Joe Pojman, executive director of Texas Alliance for Life, an independent anti-abortion group. “That bumper sticker ‘I’m going sailing,’ I’m not putting it on my car anytime soon.” 

Pojman, who founded the alliance in 1988, was there last September when Abbott signed one of the nation’s most restrictive abortion laws. The measure effectively outlaws the procedure as early as six weeks into a pregnancy–before many even realize they are pregnant–and allows citizens to sue physicians and others who help facilitate an abortion.

“We think Texas is well prepared for a post-Roe environment with respect to protecting unborn babies from the tragedy of abortion,’’ Pojman said.

Groups opposed to legal abortion hope to replicate the Texas law across the nation.

The National Right to Life Committee earlier this month drafted model legislation that mirrors the bill signed by Abbott. It would empower prosecutors and state attorneys general to assess penalties and revoke the licenses of abortion providers and allows private citizens to sue medical providers and others who help a person obtain an abortion. It also contains a provision that permits prosecutors to pursue the proceeds of abortion activity under the RICO statutes, in much the same way they would pursue organized crime.

 “For decades, National Right to Life and its state affiliates have led the effort to pass life-affirming laws at the state level that protect unborn children and their mothers – efforts that have drastically reduced the number of abortions and brought us to this moment in our nation’s history,” Carol Tobias, president of National Right to Life, said in a press release issued earlier this month. “With this model law, we a[re] laying out a roadmap for the right-to-life movement so that, in a post-Roe society, we can protect many mothers and their children from the tragedy of abortion.”

Other anti-abortion activists say the energy they invested in fighting abortion will be shifted to supporting women and children.

“It’s not just protecting the baby, it’s about serving and empowering the woman if she’s going to have that baby,’’ said Sue Liebel, director of state affairs for Susan B. Anthony Pro-Life America. “As Roe v. Wade comes to…a screeching halt, these pro-life states are ramping up their services to women as well…we have a lot more social services than we did in 1973, however we can do more.”

Democrats are skeptical. They predict Republicans will pursue individuals who seek an abortion, even if that requires travelling to a state with less restrictive laws.

“This is a war on women under the false guise of protecting life,’’ said Gabrielle Chew, vice president of communications for the Democratic Legislative Campaign Committee. “Some Republicans are saying, ‘we want to help with the safety net, we want to help women’ but their pro-life stance stops once the baby is born. All you have to do is quickly look back on some of their votes to see where they stand on issues like Medicaid and Medicare or providing health insurance and equitable health access across their states or strengthening public education and providing funding and paying for teachers. These are all things that Republicans--nine times out of 10--vote against and these are all resources that would be valuable to a child once they are actually born.’’

Pojman noted that Texas allocated $100 million over two years to nonprofit agencies that provide new mothers with everything from maternity clothes and diapers to job training and counseling. The “alternatives to abortion” program, modeled after a similar initiative in Pennsylvania, provides services to low-income women faced with unplanned pregnancies, whether they chose to raise the child themselves or opt for adoption, Pojman said.

“Our goal is to build a society in Texas where no woman seeks an abortion,’’ he said. “We want women to know about the vast resources available to them.”

Abbott pledged to work with "the Texas legislature and all Texans to save every child from the ravages of abortion and help our expectant mothers in need."