States prepare for patchwork of abortion laws

Leak of a draft decision reversing Roe vs. Wade sparks a flurry of activity in the states

Sen. Steve Daines, R-Mont., stands outside the U.S. Supreme Court before the start of oral arguments in Dobbs v. Jackson Women's Health Organization case on Dec. 1, 2021.  (Bill Clark/CQ Roll Call)
Sen. Steve Daines, R-Mont., stands outside the U.S. Supreme Court before the start of oral arguments in Dobbs v. Jackson Women's Health Organization case on Dec. 1, 2021. (Bill Clark/CQ Roll Call)
Posted May 3, 2022 at 2:19pm

In the hours after news leaked of a draft Supreme Court opinion that would reverse long-standing precedent for the right to an abortion, crowds began to gather around the Supreme Court.

The website for the National Network of Abortion Funds, which organizes donations to cover the costs of abortions and related transportation and child care, was so overwhelmed with traffic that it suffered a site outage. 

Advocacy groups like Planned Parenthood, Women’s March, MoveOn and Ultraviolet began planning for rallies nationwide Tuesday in town squares and in front of federal courthouses and government buildings.

The unexpected leaked draft decision mobilized congressional and state-level lawmakers, governors, advocacy groups and citizen-led initiatives that were scrambling with how to move forward to protect or limit abortion access.

“This is a time that calls for all of us to engage in ways that we may not have thought we would have had to in our lives. That's true for policymakers and members of Congress and this administration,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center, during a Tuesday press call.

The 1973 landmark decision Roe v. Wade guaranteed the right to seek an abortion, and subsequently the 1992 case Planned Parenthood v. Casey prohibited abortion restrictions that result in an "undue burden" on a woman before a fetus is viable.

Neither decision has stopped an influx of state and federal pushes to restrict when, how and why an abortion can be performed. But most action traditionally occurs at the state level.

What comes next

While the Supreme Court has not issued an official opinion in Dobbs v. Jackson Women’s Health Organization — and a high court spokesman Tuesday stressed that the draft “does not represent a decision by the Court or the final position of any member on the issues in the case” — the challenge to a Mississippi law banning abortions after 15 weeks of pregnancy, the impending decision and now the leaked draft have ramped up action by states in preparation for changes to national precedent.

What happens in the absence of the standard under Roe is complicated.

Data from the Guttmacher Institute, a research and policy organization that works to advance  sexual and reproductive health and rights, shows that 23 states have laws that could restrict abortion access if Roe were struck down.

Nine are unenforced state bans from prior to 1973, but 13 states have passed laws after Roe. Those laws would go into effect if Supreme Court precedent changes. 

There are also nine states with bans that have been blocked that could be reinstated if precedent changes.

“As of right now, abortion is still legal in all 50 states. But Roe alone was never enough to protect abortion rights and access, and the leaked U.S. Supreme Court opinion foreshadows a future that will be dramatically worse,” said Herminia Palacio, president and CEO at the Guttmacher Institute, in a statement. “Guttmacher’s experts predict that without Roe, 26 states are certain or likely to quickly ban abortion to the fullest extent possible, particularly states clustered in the South, Midwest and the Plains.”

Calls for action

Governors and lawmakers have called for additional action to be taken in wake of the leaked draft, either to enhance abortion protections or to further limit what would be legal in certain states.

Federal Democrats have called for Congress to pass a House-passed abortion rights bill that has so far been unable to overcome a Senate filibuster. The bill would prohibit some state-level restrictions and would not permit limits on health care providers' ability to administer abortions. It fell short in the Senate on a procedural vote 46-48 in February.

The House Pro Choice Caucus, Democratic Women’s Caucus, House Appropriations Chair Rosa DeLauro, D-Conn., and Sen. Tammy Baldwin, D-Wis., have all renewed calls for the bill’s passage since the leak.

Senate Majority Leader Charles E. Schumer on Tuesday called for another vote to codify abortion rights.

“It is my intention for the Senate to hold a vote on legislation to codify the right to an abortion in law,” he said in a floor speech. "Second: A vote on this legislation is not an abstract exercise; this is as urgent and real as it gets. We will vote to protect a woman’s right to choose and every American is going to see which side every senator stands.”

Sen. Steve Daines, R-Mont., the founder and chair of the Senate Pro-Life Caucus, criticized the leak as an attempt to intimidate the court but supported the draft decision.

“With that said, if the draft opinion stands, the Court will have righted an historic injustice and returned the power to the American people and their elected officials to enact laws to protect unborn children and mothers,” he tweeted Tuesday.

California Gov. Gavin Newsom and leaders of the state’s Legislature announced late Monday they intend to seek to add protections to the state constitution.

“California is proposing an amendment to enshrine the right to choose in our state constitution so that there is no doubt as to the right to abortion in this state. We know we can’t trust the Supreme Court to protect reproductive rights, so California will build a firewall around this right in our state constitution,” said Newsom, Senate President Pro Tempore Toni G. Atkins and Assembly Speaker Anthony Rendon in a joint statement.

Other Democratic governors, like New Jersey’s Phil Murphy and New Mexico’s Michelle Lujan Grisham, said abortion care will not change in their state, regardless of possibly changing precedent.

South Dakota Gov. Kristi Noem was the first to announce that if the leaked draft is true, she plans to call for a special session to “save lives and guarantee that every unborn child has a right to life in South Dakota.”

Missouri Attorney General Eric Schmitt said in a statement that if Roe is overturned, "I’m prepared to immediately issue the opinion that would protect the unborn in Missouri."

On the ballot

California's proposed amendment would need voter approval, and voters in at least one other state will get to vote on protecting abortion rights, while three others are trying to use the ballot for the first time to enact restrictions.

Kansas, Kentucky and Montana plan to vote on restrictions to abortion. Voters in both Kansas and Kentucky decide whether their state constitutions have a right to abortion.

Kansas has a vote set for Aug. 2, which could mean decreased turnout compared with a traditional Election Day amendment vote. Kentucky’s measure will be up for a vote on Nov. 8 and would also clarify that the constitution does not require any funding for abortion.

Montana voters will decide Nov. 8 on a measure that would require medical care for infants born alive after induced labor, a cesarean section or attempted abortion. It would declare any infant born under these circumstances a legal person, and violators could be subject to a $50,000 fine and/or up to 20 years in prison.

Vermont’s vote will be a result of a multiyear process by lawmakers to get a state constitutional amendment on the ballot.

The proposed amendment — which would establish a right to reproductive freedom, including abortion and contraception, in the state constitution — has passed both chambers in two consecutive legislatures. The bill was first passed in 2019.

Colorado, Michigan, and Oklahoma have also been making progress to get reproductive language on the ballot.

It’s unclear if the news of the impending case would prioritize any of these initiatives coming to a vote in the fall.

The Colorado measure would ban all abortion with exceptions only to save the life of the mother, remove an ectopic pregnancy or remove a deceased fetus. But Colorado voters rejected a 2020 measure to ban abortion after 22 weeks of pregnancy with an exception only to save the life of the woman.

Michigan is seeking to create a conditional right to reproductive freedom, which would include abortion, contraception, infertility care and miscarriage management.

Oklahoma advocates are pushing for two abortion-related amendments. One would state that the right to abortion is not in the state constitution. The second would grant “unborn persons” the same rights as “born persons.”

“It's important for folks to know that attacking abortion care like this and the folks that do this work,  it's very difficult to sustain ourselves through the work. And what we may see in the near future as clinics do potentially close, folks should know that once that access is gone, it is very difficult to restore,” said Bhavik Kumar, medical director for Planned Parenthood Gulf Coast.