With the confirmation of Brett Kavanaugh to the Supreme Court, the long-held goal of the anti-abortion movement and the long-standing fear of pro-choice advocates — a decision restricting or ending altogether the right enshrined in Roe v. Wade — is likelier now than at any time since 1973. No one knows what form such a decision might take, but both sides have been preparing for a future that could return matters to the pre-Roe status quo, when each state set its own laws regulating abortion.
With Kavanaugh’s elevation, the future tense has become present, and there has been a ramping up of strategies that until now had been theoretical.
“We have a plan,” said Dawn Laguens, executive vice president of Planned Parenthood and the Planned Parenthood Action Fund, in a conference call this week to announce the organization’s new approach. “We’ve been anticipating this moment, working on this plan since Trump and Pence took office.”
The emerging “back to the states” approach is built on the assumption that Roe probably won’t be completely and officially reversed in the near term. But even without the phrase “Roe vs Wade is officially moot”, the newly conservative supreme court can effectively claw back the right.
“Scholars seem to agree that undercutting is more likely than overturning,” says Elizabeth Nash, senior state issues manager for the Guttmacher Institute. “The practical effect is essentially the same.”
But focusing on the states is not a new strategy for either side. Already a woman’s ability to access abortion is determined by her zip code and her ability to travel, with some states and even entire regions turned into “abortion deserts” because legislatures have added layers of restrictions that force many clinics to close.
“Access to abortion is already different from state to state,” says Daniela Kraiem, associate director women and the law program at the American University Washington College of Law. “Even with Roe in place abortion access looks very different if you are in Louisiana versus California.”
In fact, the years-long strategy on the state level seems about to pay off for the anti-abortion movement. (A spokesman for both the National Right to Life and the March for Life could not be reached for comment.) Legislatures in the deepest red parts of the south and Midwest have passed harsh restrictions – prohibiting abortion after six weeks (Iowa), prohibiting the method most commonly used in the second trimester (Alabama and Texas), prohibiting it completely (vetoed by the governor of Oklahoma), declaring a fetus a person (under consideration in South Carolina and Alabama) – in the hope that it could be challenged all the way up to what they expected would be an increasingly conservative Supreme Court.
There are at least 13 such cases making their way through the Federal Courts, and the one being watched most closely now involves challenges to similar laws in Alabama and Texas prohibiting the dilation and evacuation procedure, which is the way 95 percent of abortions are done after the 14th week. The 11th circuit declared Alabama’s law to be unconstitutional based on Roe; the 5th circuit is scheduled to hear the Texas law the day before election day. The 5th is one of the most conservative in the country, and should it uphold what the neighboring 11th has struck down, the split could lead to the Supreme Court taking the case.
Which is why the plans being announced by pro-choice groups the past few days have an increased focus on state legislatures. Groups like NARAL and the Planned Parenthood Action Fund plan to increase their backing for pro-choice candidates in anti-abortion states, while lobbying traditionally pro-choice legislatures to codify abortion rights into state constitutions.
There are only a handful of states where abortion access is specifically protected in that way, among them Connecticut, Florida and Montana. After Kavanaugh was nominated this summer, the Massachusetts governor signed a legislative repeal of what he described as that state’s “antiquated and inappropriate” laws, which were still on the books long after they were made moot by Roe.
That still leaves many blue states, most strikingly New York, with pre-Roe laws that could potentially become the default in a post-Roe environment. When New York became the first state to permit abortion in 1970 it was “a great leap forward,” says Nash, but the specifics of that law – only allowing abortion up to 24 weeks unless the woman’s life is in danger – “doesn’t even meet the current Supreme Court standard, which is permitted up to age of viability and to protect life and health of the woman.”
“There have been some efforts over the years to update the law in New York, but it never got a lot of traction,” she says. “Now people are paying much more attention,” and she predicts that a repeal or revision of that law will be taken up by the next legislature.
With the realities of the map in mind, Planned Parenthood Action league announced a program called Care for All, a call to strengthen laws in already sympathetic states, such as pending legislation that would guarantee abortion access for women on public assistance in Illinois, require insurance companies to pay for abortion in Maine and remove a variety of barriers to abortion and birth control in Hawaii, Oregon and Washington.
Those states and others would then become part of what Laguens describes a planned “Regional Access Network.” It would connect women — by telemedicine, or by transportation — who live in states with abortion restrictions to providers in more liberal states, in the Northeast, the West Coast, or outposts such as Illinois and Maryland.
The state strategy relies not just on legislation but on public opinion. Pro-choice groups regularly cite polls showing more than 70 percent of Americans do not want Roe overturned. Anti-abortions groups in turn note that a majority supports some restrictions, such as limits on third-trimester abortions.
Now that the fight looks to be increasingly local, groups are working to make it resonate closer to home. NARAL just unveiled a $750,000 digital and direct mail campaign aimed at suburban women in Denver; Port St. Lucie, Florida; Cedar Rapids and Des Moines, Iowa; the Twin Cities of Minnesota; Las Vegas; Dallas; and Leesburg, Virginia, warning that should Roe be weakened or overturned, “state legislatures are working to restrict and criminalize abortion.”
Planned Parenthood, in turn, is including “culture change” as part of its newly announced strategy. Some of that will be national in scope – working with film and TV creators to include “real life, sensitive portrayals” of abortion on screens, says Kevin Griffith, vice-president of communication at the Planned Parenthood Action Fund. But much will also be local, aiming to “reduce stigma in our own lives, work spaces and relationships.”
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