Roe reversal puts spotlight on state laws

Moving the needle to pass abortion policy in Congress is nearly impossible unless either party is able to claim a Senate supermajority in November

A group of House Democrats joined protests in front of the Supreme Court after the decision Friday overturning abortion rights. (Bill Clark/CQ Roll Call)
A group of House Democrats joined protests in front of the Supreme Court after the decision Friday overturning abortion rights. (Bill Clark/CQ Roll Call)
Posted June 24, 2022 at 3:20pm

The Supreme Court’s decision to reverse long-standing precedent under Roe v. Wade will fuel lawmakers, state officials and the Biden administration as they race to reshape abortion laws nationwide, though the onus now will largely be on the states.

The ramifications of the ruling will vary on a state-by-state level, with the East and West coasts becoming de facto safe havens for people seeking access to abortion, while much of the South and Midwest will almost immediately become abortion deserts.

Federally, both the administration and Congress are limited in what they can do to make sweeping changes.

For Democrats, the path to implement ways to protect abortion rights nationally is narrow without removing the Senate filibuster. The same issue presents a roadblock for Republicans to institute broader bans on abortion pre-viability.

This leaves states to institute their own changes on a local level, though successful state laws can provide a roadmap for copycat bills.

For example: After Texas successfully implemented a six-week abortion ban in September, Idaho and Oklahoma enacted similar laws.

On Friday, President Joe Biden called on Congress to restore protections under Roe v. Wade as federal law, acknowledging he was limited in what his office could do.

“No executive order from the president can do this,” he said. “This is a sad day for the country right now, but that doesn’t mean the fight’s over.”

Congressional interest

Moving the needle to pass abortion policy in Congress is nearly impossible unless either party is able to claim a supermajority in the 50-50 Senate this November, spurring Democratic leaders Friday to emphasize the need to strengthen their majorities.

"This is deadly serious. But we are not going to let this pass. A woman's right to choose, reproductive freedom is on the ballot in November,” said Speaker Nancy Pelosi.

The California Democrat said congressional Republicans "are plotting a nationwide abortion ban."

"They cannot be allowed to have a majority in the Congress to do that," Pelosi said, calling the decision a “slap in the face to women about using their own judgment to make their own decisions about their reproductive freedom."

Senate Majority Leader Charles E. Schumer, meanwhile, said the decision "makes crystal clear the contrast as we approach the November elections.”

Even with a Democratic-controlled House, Senate and White House, Republicans have been able to block major abortion legislation under longstanding Senate rules. Democrats lack the votes to change these rules, but vowed Friday to try.

“Republicans are pushing for a federal abortion ban and Roe v. Wade is no longer settled law. But we aren’t going to stand idly by while they rip away abortion rights, or go after birth control next,” said Senate Health, Education, Labor and Pensions Chairwoman Patty Murray, D-Wash. “The American people will not forget Republicans’ cruelty — not today, not tomorrow, and not this November.”

Some lawmakers are trying to push forward on other alternatives.

Sen. Tina Smith, D-Minn., a former Planned Parenthood state executive, introduced legislation Thursday before the ruling that would protect current law regarding medication abortions. The bill would allow patients to access the drug mifepristone through current Risk Evaluation and Mitigation Strategy regulations via telehealth or certified pharmacies, regardless of changes to national abortion precedent.

Biden, too, vowed his administration would work to protect access to such medications.

Meanwhile, Senate Republicans, who have long tried to pass abortion restrictions tied to the anniversary of the Roe v. Wade decision, see a new opportunity.

“The issue of life will now be decided by elected officials in the states, the same way the issue was handled until 1973. Simply stated, this decision represents a constitutional reset,” said Sen. Lindsey Graham, R-S.C., a longtime supporter of a nationwide ban on abortion after 20-weeks of pregnancy.

Sen. Susan Collins, R-Maine, who drew the ire of abortion rights supporters by voting to confirm Supreme Court Justice Brett M. Kavanaugh, blasted the decision and said she is working with Sen. Tim Kaine, D-Va., on a bill to codify prior Supreme Court decisions on abortion.

“Our legislation would enshrine important abortion protections into law without undercutting statutes that have been in place for decades and without eliminating basic conscience protections that are relied upon by health care providers who have religious objections to performing abortions,” Collins said in a statement.

In the House, Pro Life Caucus co-Chair Christopher H. Smith, R-N.J., praised the decision and pushed back on efforts by the House and his home state to protect abortion access.

“These policies pose an existential threat to the well-being and lives of innocent children,” he said, referring to actions by Democrats that would protect abortion access later in pregnancy. “Now, more than ever, women and men of conscience must act to protect the weakest and most vulnerable.”

State action

On the state level, several governors and state lawmakers have hinted they plan to take additional action.

New York Gov. Kathy Hochul, a Democrat, said her state will remain a “safe haven” for patients seeking abortions from other states and pointed to legislation she signed last week that further protects abortion rights access.

“To anyone who is working to deny abortion access, our message is clear: not here, not now, not ever,” she said.

Some Democrats have said that women, especially in the South, may attempt to travel to Mexico to seek abortion access. The Mexican Supreme Court ruled in 2021 that abortion cannot be penalized, though like the U.S., specifics vary by state.

“Traveling to Mexico is already a viable option for many Texans. However, I do want to note that there's a fundamental limitation even with funds, not everyone is available to travel,” said Texas Rep. Erin Zwiener, one of six state lawmakers who traveled to Mexico in May to study abortion access.

When her state has banned most abortions in September, Zwiener, a Democrat, said 45 percent of women sought appointments in Oklahoma. Then Oklahoma implemented its own ban. “Considering the number of states that are moving towards an abortion ban, I think we're going to see just an ongoing domino effect,” she said June 7.

Advocates are also hoping to pass ballot measures to protect and expand abortion access in Vermont and Michigan.

But Republicans see this an opportunity to pass and implement laws that crack down on abortion that have otherwise been impossible. Kentucky, Kansas and Montana all have abortion restrictions on the ballot.

South Dakota Gov. Kristi Noem and state legislative leaders on Friday called for a special legislative session to take up additional bills related to abortion and motherhood. They have not settled on an exact date.

“We must do what we can to help mothers in crisis know that there are options and resources available for them. Together, we will ensure that abortion is not only illegal in South Dakota — it is unthinkable,” Noem said.

Mississippi Gov. Tate Reeves called the decision a move to “overcome one of the greatest injustices in the history of our country." The state’s case was the catalyst for the overturning of Roe v. Wade.

“We must remember that our work is not yet over," he said. "The pro-life movement must dedicate itself to ensuring mothers and their babies receive the support they both need during pregnancy and after."

Lindsey McPherson contributed to this report.