Liberal states are moving to enshrine abortion rights in fear that President Trump’s Supreme Court nominee Brett Kavanaugh could be the deciding vote to overturn Roe v. Wade.
The landmark 1973 Supreme Court decision made abortion legal nationwide until fetal viability, understood at roughly 24 weeks, but a different court makeup could change this. Pro-abortion rights groups have been sounding the alarm about this possibility under Kavanaugh, who will tilt the Supreme Court to the right if confirmed to replace retiring Justice Anthony Kennedy, who had been a vote to uphold Roe.
Many states, even some liberal ones where public support for legalized abortion is high, still have laws on the books restricting abortion that predate the Roe decision. With Roe comfortably in place, there was no reason to revisit these laws — but Trump’s reshaping of the Supreme Court is changing the thinking of state lawmakers.
Abortion rights advocates are using the the looming possibility that Roe v. Wade may be overturned or weakened to push states to scrap old laws restricting abortion and to pass new ones enshrining the right. Some states, particularly liberal ones including Massachusetts, Illinois, and New York, are already taking action.
It’s far from certain that the Supreme Court will touch Roe, but if it should be overturned, then the legalization of abortion will return to the states, where additional restrictions or bans are possible. Advocates say for this reason it is necessary for state legislators to take decades-old laws off the books and move to explicitly cement abortion rights.
[Related: Brett Kavanaugh poised to take first step in overturning Roe vs. Wade]
“All states, and especially ‘blue states’ where change should already be possible, need to act immediately to ensure abortion remains accessible, no matter what happens in the Supreme Court,” said Andrea Miller, president of the National Institute for Reproductive Health.
State initiatives that are underway are aimed not only at the legalization of abortion but at expanding health insurance coverage on abortion, removing restrictions on when women are allowed to have an abortion, and allowing more medical workers to provide abortions.
Efforts from advocacy groups seeking to expand abortion rights have resulted in 52 bills introduced specifically on abortion access in 21 states, according to the National Institute for Reproductive Health.
In New York, Democratic Gov. Andrew Cuomo signed an executive order shortly after Kennedy announced he would retire that protects abortion in the state. Last year he called for amending the state constitution to codify Roe, but Senate Republicans refused to bring the measure to the floor.
Following the Supreme Court announcement, Cuomo is resurfacing calls for lawmakers to act, encouraging legislators to hold a special session to pass a law establishing abortion as a right under New York state. Rhode Island Gov. Gina Raimondo, a Democrat, has done the same.
Lawmakers in Massachusetts have sent a bill to the governor that not only repeals a pre-Roe law criminalizing abortion but also guts other laws, including one blocking doctors from providing birth control to women who are unmarried and another requiring abortions after 13 weeks to be performed in a hospital. These measures have been overruled by other state and federal laws but have remained on the books, and pro-abortion rights groups had pushed for their repeal for a decade.
The Massachusetts bill is titled the Negating Archaic Statutes Targeting Young Women Act, or “NASTY Women” Act, after a name that President Trump called Hillary Clinton during one of the presidential debates. Gov. Charlie Baker, a Republican who is pro-abortion rights, has signaled he’s open to signing it.
“Gov. Baker fully supports access to women’s healthcare and family planning services in the commonwealth, supports the concept of the NASTY Women Act and will carefully review the final legislation on his desk,” said Anisha Chakrabarti, deputy press secretary for the governor’s office.
Other states have moved during the past year to increase abortion access. Illinois, Oregon, New Jersey, and Washington state have expanded either private or public coverage of abortion.
In Illinois, Republican Gov. Bruce Rauner signed a bill removing a “trigger” provision that would have made abortion illegal should Roe be overturned. Louisiana, Mississippi, North Dakota, and South Dakota still have these trigger laws in place.
The number of states that still have pre-Roe bans on the books has shrunk since Trump took office. Even though the laws are considered unconstitutional and unenforceable, abortion rights advocates say lawmakers in the 10 states that still have them should look to undo them.
Delaware Gov. John Carney Jr., a Democrat, signed a law last year repealing the pre-Roe ban, making the state the first to do so under Trump and before it was known that Kennedy would retire. The law also repealed a 24-hour waiting period, a 20-week ban, and a requirement that minors receive parental or guardian consent for an abortion.
A New Mexico bill would similarly undo a pre-Roe ban. The state is not currently in session, but if it were to pass, then New Mexico would join others that explicitly legalize abortion, which include California, Connecticut, Hawaii, Maine, Maryland, Oregon, Nevada, and Washington state.
Critics of these measures have said it is far from clear that Roe will be changed and have argued that passing these laws is unnecessary.
C. J. Doyle, the executive director of the Catholic Action League in Massachusetts, pointed to a 1981 decision by the Supreme Judicial Court saying that the commonwealth’s Constitution contains a right to abortion. He accused legislators of demonstrating “their toadying subservience” to Planned Parenthood, which he called “one of the state’s most powerful special interests.”
Steve Aden, chief legal officer and general counsel for Americans United for Life, said that these states are going further than another Supreme Court decision, Planned Parenthood v. Casey, which allows for some regulations on abortions. He accused the states of “dragging down the standards for women’s healthcare.”
“It’s worse than redundant,” Aden said of the recent pro-abortion laws passing in states. “It’s confusing and harmful to women. … For them time has stood still; it’s still 1973 and they haven’t gotten the memo that states have the ability to regulate abortion.”
He said the regulations should include passing laws to protect health and safety, citing examples such as prohibiting women from having an abortion based on a fetus’ gender or disability, or requiring informed consent.
“Those are the areas that most states are working in right now, and appropriately so,” he said.
Anti-abortion groups have seen their own successes in passing state restrictions since Trump was elected. Other states are likely to place limits on abortion.
“Massachusetts is a good example of how people are doing this because they care about their rights and they want to protect them,” said Planned Parenthood. “But that doesn’t mean states are safe when they do this.”
Wisconsin banned state-funded abortions, with exceptions for rape, incest, or if a woman’s pregnancy threatens her life. West Virginia has a ballot measure that will be considered in November to amend its state constitution to declare, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”
Other states have limited how late into a pregnancy an abortion is allowed, or how it can be performed, but many of these laws have been blocked by courts because of the parameters set in Roe.
[Opinion: Overturning Roe v. Wade won’t outlaw abortion — just look at federal pot rules]
