Demonstrators outside the U.S. Supreme Court on Wednesday, Dec. 1, 2021. Justices are hearing arguments in a Mississippi case that seeks to overturn Roe v. Wade. (Photo by Jane Norman / States Newsroom)
Breaking:Politico reported late Monday that the conservative U.S. Supreme Court will likely overturn Roe v. Wade, citing a leaked draft of a majority opinion. The landmark 1973 ruling that upheld abortion rights “was egregiously wrong from the start,” Justice Samuel Alito writes in the document that Politico published in full online.
Decision-making about big, controversial cases can shift, and justices can create multiple drafts before a final ruling is issued.
The final ruling is expected in the coming weeks.
— Marisa Demarco, EIC
WASHINGTON — Abortion access throughout the country could soon depend on a patchwork of state laws if a U.S. Supreme Court dominated by conservatives overturns the constitutional right it established nearly 50 years ago.
The court’s decision on Mississippi’s 15-week abortion ban is expected sometime within the next two months. But state legislatures have been racing to prepare for the expected landmark ruling by shepherding new, vastly different pieces of legislation to their governors.
Red states — which are responsible for a majority of the new laws — have enacted some of the strictest limits on abortion in decades. Meanwhile, blue states have sought to secure abortion access as a fundamental right within their borders, as well as prepare for out-of-state women seeking to terminate their pregnancies.
There’s much more to come, those familiar with the case predict. “If the court upholds the 15-week ban without a ton of guidance as to what other bans could be enforceable, there will be a six-week ban on their doorstep within a year or two,” said Elizabeth Nash, principal policy associate for state issues at the Guttmacher Institute, an abortion rights research organization.
In total, 23 states now have laws on their books that would clamp down on abortion access should the U.S. Supreme Court rewrite abortion law or even overturn Roe v. Wade, though some laws are under challenge. They include Arizona, Florida, Idaho, Kentucky, Oklahoma and Wyoming.
Sixteen states have laws that are expected to protect access, according to the Guttmacher Institute. That group includes Colorado, Maryland, New Jersey, Oregon, Vermont and Washington.
There are several states, however, where it’s not entirely clear what abortion laws would look like in the long term if the court acts to limit abortion access.
Alaska, Florida, Illinois, Iowa, Kansas, Minnesota and Montana’s state supreme courts have separately ruled that each state’s Constitution protects the right to an abortion, according to the Center for Reproductive Rights.
So even if the U.S. Supreme Court overturns a national right to terminate a pregnancy and conservative lawmakers in those states want to enact restrictions, they might have problems — though some Republican-controlled states are already challenging the abortion protections in their states’ constitutions.
Several state governments are also prone to swinging between Democratic and Republican control, a trait that could lead to a change in abortion policy following each election.
States pick up their pace
Momentum behind new state abortion laws increased after the U.S. Supreme Court heard arguments in December in Dobbs v. Jackson Women’s Health Organization.
The case, from a health care provider in Mississippi, challenged a state law that would ban the vast majority of abortions after 15 weeks of pregnancy.
The Supreme Court has several paths it could take in deciding the case, but many antiabortion groups and even some abortion rights organizations believe the court’s 6-3 conservative majority could end five decades of legal access across the United States.
The Supreme Court first established a fundamental right to an abortion in the 1973 Roe v. Wade decision, though that’s not the court’s only ruling on abortion access.
The 1992 Planned Parenthood v. Casey ruling set the so-called viability standard. That ruling said women have the right to terminate a pregnancy without undue interference from the government until the point of viability, roughly 22 to 26 weeks into the pregnancy.
One possible path for conservative justices is ruling Roe was wrongly decided and that the U.S. Constitution doesn’t guarantee the right to an abortion. That would leave each U.S. state to set its own abortion laws in line with its state constitution.
A second potential ruling could say that Mississippi’s abortion ban is an acceptable restriction on abortion access. That would signal that states are safe to enact abortion bans at 15 weeks or later in a pregnancy, but would leave some confusion about state bans below that threshold.
A decision is expected before the court ends its spring term, which usually is in late June or early July.
A string of new laws
Republican-controlled states have used the last few months to enact 15-week abortion bans, six-week bans and so-called trigger bans that would go into effect if Roe v. Wade is overturned and abortion is made completely illegal.
The string of new laws began in early March when Florida’s legislature passed a 15-week abortion ban, though Republican Gov. Ron DeSantis didn’t sign the bill into law until mid-April. It would take effect July 1, pending a legal challenge from the American Civil Liberties Union.
Arizona Republican lawmakers and Gov. Doug Ducey approved a similar 15-week ban in late March.
Neither the Florida measure nor the Arizona law includes exceptions for women who become pregnant as the result of rape or incest.
Democrats in both states rallied against the legislation, with Florida Senate Democratic Leader Lauren Book saying it was an “an assault on women’s rights” and Orange County state Sen. Randolph Bracy calling the lack of an exception for rape or incest “cruel.”
But Kelly Therrien, an antiabortion activist who spoke during a signing ceremony at the Nacion de Fe church in Kissimmee, Florida, defended the law. She said that after becoming pregnant at 38, she went to get an abortion before deciding against it.
“Nobody wanted my daughter. Her father said it’s not mine, haven’t heard from him for over four years. My parents wanted nothing to do with the pregnancy. My mother even took me for the abortion. When I got there, I didn’t do it,” she said.
Therrien went on to say that her parents love her now 3-year-old daughter, who she says was a “surprise” and not a “mistake.”
In Kentucky, Republican lawmakers this month overrode a veto from Democratic Gov. Andy Beshear on a bill that would ban abortion after 15 weeks of pregnancy.
That legislation also doesn’t include an exception for rape or incest, and Beshear objected.
“Rape and incest are violent crimes,” Beshear wrote in his veto message. “Victims of these crimes should have options, not be further scarred through a process that exposes them to more harm from their rapists, or that treats them like offenders themselves.”
The Kentucky law, which is on hold following a federal district court ruling Thursday, would greenlight a state database with the names and addresses of doctors who perform abortions, create a certification and monitoring program for those doctors, and make it illegal to mail prescription abortion medication.
More restrictions in states
Oklahoma’s GOP state government passed several laws, including one that makes abortion a felony punishable by up to 10 years in state prison, a maximum fine of $10,000, or both.
The law, signed in mid-April by Republican Gov. Kevin Stitt, doesn’t include exceptions for rape or incest. It would not allow women to be criminally charged for obtaining an abortion.
The Biden administration admonished Oklahoma lawmakers for approving the law, with press secretary Jen Psaki calling it an “unconstitutional attack on women’s rights.”
“Make no mistake: The actions today in Oklahoma are a part of a disturbing national trend attacking women’s rights, and the Biden administration will continue to stand with women in Oklahoma and across the country in the fight to defend their freedom to make their own choices about their futures,” she said.
In Idaho, the GOP legislature followed in the footsteps of a Texas law from 2021 that bans abortions after six weeks of pregnancy, though private citizens would enforce the measure with civil lawsuits rather than state prosecutors bringing criminal cases.
The Idaho law, which would allow lawsuits against the doctor who performed the abortion, is currently on hold as the Idaho Supreme Court reviews it.
Idaho Republican Gov. Brad Little wrote before signing the bill on March 23 that he supports the policy, but was concerned the legislation would “be proven both unconstitutional and unwise.”
Given the action of neighboring states, Oregon began preparing for an influx of women seeking abortion access, in part by approving $15 million to establish the Oregon Reproductive Health Equity Fund.
Seeding Justice, the Portland-based organization administering the funding, is likely to use the money to help women pay for travel for abortion access and other abortion-related programs.
“Barriers to abortion care have a disproportionate impact on people already facing multiple layers of discrimination: Those with low incomes, people of color, young people, immigrants, LGBTQ+ individuals and people who live in rural communities are most impacted by these barriers.” Executive Director Se-ah-dom Edmo said in a statement.
Other Democratic–controlled states have sought to expand access to abortion or secure it as a right during the past few months.
The Maryland General Assembly in early April overrode GOP Gov. Larry Hogan’s veto of a bill that would allow nurse midwives, nurse practitioners and physician assistants to perform abortions.
Hogan, who is term limited, said in his veto letter that the measure would endanger “the health and lives of women by allowing non-physicians to perform abortions.”
“The only impact that this bill would have on women’s reproductive rights would be to set back standards for women’s health care and safety,” Hogan wrote.
Colorado Gov. Jared Polis, a Democrat, signed legislation that would maintain the “status quo” in the state should the Supreme Court undo precedent from previous abortion cases.
“It’s likely only a matter of time that the federal protections at the Supreme Court simply cease to exist,” he said during a signing ceremony for the bill.
Landmark bill affirming abortion rights signed into law by Colorado Gov. Polis
Michigan Democratic Gov. Gretchen Whitmer has taken a somewhat different approach, filing a lawsuit in state court challenging a 1931 law that makes abortion criminal unless it’s to protect the woman’s life.
The suit could establish abortion as a right within Michigan’s Constitution if its state Supreme Court rules the law violates the state’s Equal Protection Clause and its due process clause, which includes privacy and bodily autonomy rights.
“Nearly my whole life, this is a right that’s afforded women the freedom to live and enjoy full rights to privacy and autonomy and equality as American citizens. All of that is in jeopardy,” Whitmer said in an interview with Michigan Advance. “Regardless of why a woman might choose to exercise her rights in this regard, it is none of our business.”
Not all the new abortion bills made it through to governors during state legislatures’ annual sessions this year.
The Missouri House blocked legislation from Republican state Rep. Mary Elizabeth Coleman that would have allowed citizens to file a lawsuit against anyone who helps a woman access abortion outside the state.
And the Iowa House has yet to act on a bill state senators approved that would dole out $1 million to organizations that “have a primary mission of promoting healthy pregnancies and childbirth instead of abortion.”
In Montana, Attorney General Austin Knudsen has asked the state Supreme Court to overturn its 1999 ruling in Armstrong v. State that abortion rights are guaranteed as part of the state Constitution.
Reproductive rights organizations are asking the court to uphold its prior ruling, saying in a filing that the Armstrong decision ensured “individuals, in particular members of marginalized communities, remain protected from state overreach into the most intimate and private zones of their lives.”
In New Hampshire, lawmakers from both political parties are working on legislation that would amend the state’s 24-week abortion ban to include an exception for fatal fetal anomalies.
Many Republicans, who control the state House and Senate, are backing the bill after hearing from women and doctors about their experiences.
“I just think the idea of a woman being forced to carry a fetus that has passed away is something that we should really address, as well as a child that is a fetus that can’t possibly live outside the womb,” said state Sen. Sharon Carson, a Londonderry Republican. “I’m a mother, and I can’t imagine the pain and the suffering some of these women are going through.”
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Public opinion on abortion
Americans have remained fairly consistent in their beliefs about abortion during the last 20 years, according to Gallup polling.
In 2001, 46% of respondents said they support abortion rights and 46% said they were antiabortion. That number fluctuated slightly during the last two decades, settling on 49% of people supporting abortion rights in 2021 while 47% identified as antiabortion.
The numbers get a bit more complicated when poll questions focus on specific court cases, exemptions and timing.
A Washington Post-ABC News poll from November showed that 60% of people want the U.S. Supreme Court to uphold Roe v. Wade compared to 27% who want it overturned and 12% with no opinion.
In the same poll, 36% of respondents said they support states passing legislation that makes it more difficult for abortion clinics to operate, while 58% said they oppose it and 6% had no opinion.
When asked about the Texas law that allows anyone in the country to file a lawsuit against anyone who performs an abortion or assists a woman in accessing one after six weeks of pregnancy, 65% said the U.S. Supreme Court should reject the law and 29% said the justices should uphold it as constitutional.
In total, 75% of those surveyed said they think the decision about abortion should be left to a woman and her doctor, while 20% said it should be regulated by law and 5% had no opinion.
If the U.S. Supreme Court’s ruling doesn’t completely overturn the constitutional right to an abortion, but allows Mississippi’s 15-week ban to stand, Nash of the Guttmacher Institute expects next year’s legislative sessions will host another wave of legislation.
“I think, broadly, the intent would be that these conservative legislatures would continue to push for total abortion bans,” Nash said. “That has been the goal since Roe was handed down in 1973. And it doesn’t make sense that a decision short of completely overturning Roe would be a deterrent for them.”
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