Political messaging and state legislative activity related to abortion are ramping up in the lead-up to two milestones for abortion rights activists and opponents — the annual March for Life, scheduled for Friday, and the 50th anniversary of the Roe v. Wade decision on Jan. 22.
Both dates usually attract a hotbed of political activity, but this year will be the first since the Supreme Court overturned the national right to abortion, creating a reckoning: Now that anti-abortion advocates have met their goal of overturning Roe v. Wade, what’s next?
The issue has long been politically salient, but now the nuances matter. Former President Donald Trump blamed the GOP’s poorer-than-expected showing in the midterm elections on how candidates had handled their messaging on abortion, such as advocating for no exceptions under state abortion bans.
Republicans are wrangling with where to go next. On the federal level, some Republicans have pushed to hold votes on additional abortion restrictions, while others have shifted to arguing for other priorities or calling for abortion policy changes to come from the state level.
At least one prominent Republican senator who won on an anti-abortion platform in 2022 cautioned the GOP not to sidestep the issue, instead blaming the advice of political consultants.
“Unfortunately, many listened to them. And now they’ve bought into the media narrative that it was support for the unborn that cost Republicans in the midterm elections,” said Sen. Marco Rubio, R-Fla.
Because of the split Congress, any abortion-related legislation will focus more on motivating supporters on both sides of the abortion debate. The more critical changes, meanwhile, will happen on the state and local level through state legislatures and litigation.
A senior Biden administration official said that as of Wednesday evening, state lawmakers have filed more than 60 bills in opposition to abortion rights. Planned Parenthood said state lawmakers have filed 70 bills that support abortion rights.
House Republicans started this year by passing two measures supported by abortion opponents — one that they say would increase protections for an infant born after an attempted abortion and the other condemning recent attacks on anti-abortion advocates and religious facilities.
Shortly after the votes, Speaker Kevin McCarthy, R-Calif., foreshadowed additional action sought by advocates.
“House Republicans have been committed to advancing legislation that protects the lives of the unborn and their mothers,” said McCarthy. “We will continue to prioritize the defense of life and all individuals from violence and intimidation.”
Neil O’Brian, a political scientist at the University of Oregon, said he’s not surprised that House Republicans introduced abortion legislation within days of taking control of the chamber, even though the strategy could prove politically risky for Republicans who represent districts that Biden won in 2020.
“This is a core issue for their base, and this is a great opportunity to introduce legislation and force everybody to take a vote, even if it has no chance of getting passed,’’ said O’Brian, comparing the strategy to the GOP’s decade-long quest to repeal the 2010 health law.
Democrats, meanwhile, see abortion rights as a key issue heading into 2024.
The Democratic National Committee says Republicans will continue to seek a federal ban, using it as a conservative litmus test leading up to the Republican presidential primaries.
The Democratic-leaning House Majority PAC, which supports races to gain Democratic control of the House, used the Jan. 11 House votes to call out the 25 vulnerable Republicans who voted for the legislation, vowing that they would be “held accountable and voted out in 2024.”
State legislatures are expected to consider a number of new reproductive health bills as some legislatures gather for the first time since the court ruling.
Four governors’ seats flipped during last year’s midterms. Arizona, Maryland and Massachusetts now have Democratic governors, while Nevada flipped to Republican. Both Maryland and Massachusetts hold a Democratic trifecta, with both houses of the legislature and the governorship, while Arizona and Nevada are now divided.
Democrats also flipped both Michigan chambers, the Minnesota Senate and the Pennsylvania House, though Republicans still hold control of a majority of state legislative chambers. Minnesota and Michigan are now Democratic trifectas as well.
Many state-level abortion laws end up in litigation, such as Mississippi’s 15-week abortion ban that led to Dobbs v. Jackson Women’s Health Organization, which overturned the Roe precedent.
Both sides are eyeing changes in Virginia, where abortion remains legal.
In mid-January, Virginia Republican lawmakers introduced a 15-week ban with the support of Gov. Glenn Youngkin, while Democratic state lawmakers and Virginia Reproductive Equity Alliance announced plans to begin the multiyear process of putting the right to reproductive freedom on the ballot.
Virginia law requires a legislatively referred ballot initiative to pass in two consecutive sessions — and the General Assembly has split control. Elizabeth Nash, principal policy associate of state issues at the Guttmacher Institute, said she is primarily watching five things in states looking to expand abortion rights this year.
She’s tracking the expansion of shield laws that protect medical providers who see patients from other states. She’s watching efforts to expand or protect other forms of reproductive health, like contraception and sterilization. And she’s following whether states that allocated one-time funding boosts for reproductive health will continue that funding in the long term.
Nash is also watching whether more states expand the scope of practice for non-physician clinicians related to abortion, and whether states with antiquated abortion laws take steps to repeal them. Illinois, Minnesota and Michigan are among the states where Democrats are seeking to expand those types of protections. Michigan may also repeal its 1931 abortion ban.
Illinois Gov. J.B. Pritzker, a Democrat, last week signed broad new abortion protections into law, expanding what types of providers can perform abortions, easing restrictions on out-of-state providers seeking medical licensing and requiring the state Department of Public Health to work with organizations issuing grants for abortion training.
Minnesota Democratic state lawmakers have made passing legislation to codify reproductive rights their first priority. Their bill, which would include the right to abortion, contraception, sterilization, fertility and other services, was the first introduced during this session, and Democrats see the new partisan trifecta as their chance to see the bill enacted.
“I think it’s going to look really diverse all over the country on both sides,” said Ingrid A. Duran, director of the department of state legislation at the anti-abortion National Right to Life Committee, adding that not all state legislatures are in session yet. “We’re just going to see a little bit of a kaleidoscope of laws dealing with protecting unborn children right now, as well as laws dealing with medication abortion.”
Conservatives are eyeing a large swath of states — including Republican-led states without abortion bans in effect, such as Montana and Nebraska, as well as action in states that allow some but not all abortions, such as Florida.
One area to watch, Duran said, are efforts to regulate the trafficking of medication abortion drugs into states that ban most or all abortions.
Duran is also watching state efforts to improve maternal care or provide tax credits for unborn children or for donations to pregnancy resource centers.
“I think that is something that is going to gather a lot of steam and popularity, and that we will be seeing that in the 2023 session,” she said.
Advocates on both sides are also eyeing states with abortion bans in place that might seek new types of restrictions. Texas and Missouri, which both ban nearly all abortions, have historically pushed for broader or more experimental restrictions.
In Texas, for example, a 2021 law banned most abortions and permitted private citizen enforcement, allowing individuals to sue anyone suspected of aiding in an abortion.
Since the Supreme Court upheld the Texas law and later overturned Roe, it has made it more difficult to track which types of restrictions can be enacted without being blocked by the courts.
“Experimentation means that we don’t know if these bills will be successful if enacted,” said Nash.
She pointed to legislation introduced in Texas that would use tax penalties to penalize companies that support abortion access for their employees.
Marilyn Musgrave, a former Republican congresswoman from Colorado who is now vice president of government affairs for the anti-abortion group Susan B. Anthony Pro-Life America, said she expects several states to enact new abortion restrictions. She said she is also “very encouraged” that underscoring opposition to abortion is one of the House GOP’s priorities.
“We know this is not just a states issue,” she said. “The Dobbs decision returned this to the people and their elected representatives at the state and federal level, so we have expectations that when we’re looking at the presidential candidates, they will clearly articulate that there is a federal role.”