With the balance of the Supreme Court in question, some abortion rights advocates are quietly preparing for a future they hope never to see – one without the protections of Roe v. Wade.
If Roe, the 1973 decision that legalized abortion nationwide, were reversed, abortion could quickly become illegal in more than 20 states under existing laws. Some, like Massachusetts, still have anti-abortion laws on the books that were nullified by the Roe decision. A handful have what are known as “trigger laws” designed to automatically ban abortion if Roe is overturned.
Reproductive rights activists still hope to block the confirmation of Judge Brett Kavanaugh, a federal appeals court judge nominated by President Trump to succeed retiring Justice Anthony Kennedy. If efforts to stop Kavanaugh’s confirmation in the Republican-controlled Senate are unsuccessful, it’s not necessarily the case that Roe would be overturned anytime soon, if ever.
But some abortion rights groups are readying for the fight that would come if the Supreme Court leaves the issue of abortion once again up to states, where activists would have to contend with new legislation and those old state laws that could restrict abortion even in liberal states.
“No one ever really thought they needed to be removed from the books, because there wasn’t a threat quite like the one we’re on the precipice of seeing,” said Leslie McGorman, deputy policy director at NARAL Pro-Choice America. “But now states are taking a new look, and we certainly are encouraging states to take that new look and see what sort of protections they can institute right away.”
McGorman said NARAL will work to encourage state lawmakers to repeal old legislation, and to pass new measures enshrining the right to abortion in state law, or in a state constitutional amendment, in the event that Roe is overturned or dramatically weakened.
All hands on deck
Kavanaugh’s conservative record and Trump’s promise to appoint justices likely to help overturn Roe have advocates concerned about a future where states have wide latitude to restrict abortion. Kennedy was seen as a swing vote on the court and often voted to uphold abortion rights; his replacement is likely to tip the balance of the court in conservatives’ favor.
“This is a new time. This is certainly all hands on deck; this is certainly red alert,” McGorman said. “Whatever phrasing for emergency you might come up with – we are in that state right now.”
NARAL has launched a 50-state advocacy and organizing campaign called “Reality of Roe” to oppose Kavanaugh’s confirmation. Failing that, McGorman said the campaign will mobilize those same activists to lobby state legislators to support laws protecting abortion rights. She said the organization is eyeing the next round of state legislative sessions, which begin early next year in most of the country.
“So that specific tactic will look different in every state, obviously, because there’s a wide variance between states,” McGorman said.
A long, multi-front fight
Activists have been working for years to strengthen state laws protecting abortion rights and access, said Agata Pelka, state legislative counsel at the Center for Reproductive Rights (CRR). But those fights could take on heightened importance in the coming months and years if the balance of the Supreme Court shifts to the right, Pelka said.
“The reality is that in many states access is already pretty difficult, and it would become dramatically worse,” Pelka said. “There is a lot that states can do and have been doing to improve access to abortion.”
Pelka said CRR also has been pushing state legislation to explicitly protect the right to an abortion, and she expects more such proposals to be introduced during the next session.
Other state policy goals include improving insurance coverage for abortion; removing restrictions in some states that prevent women from taking medication to induce an abortion at home; and allowing a broader range of medical providers, such as physician assistants and nurse practitioners, to provide abortions. If Roe is overturned, Pelka said more women will travel from states with restrictive abortion laws to obtain the procedure in more liberal states.
“It’s important in today’s context to increase the number of providers in case there’s an influx of patients from other states,” she said.
Both sides gearing up
Abortion rights opponents have also been preparing for a battle on multiple fronts, marshaling their own grassroots activists in support of Kavanaugh’s nomination, and looking ahead to potential legislative battles in the states.
David O’Steen, executive director of the National Right to Life Committee, said his organization is prepared for the possibility of a renewed debate over the issue at the state level.
“The movement’s always worked at the state legislative level to pass the laws it could,” he said, pointing to laws prohibiting the use of state tax dollars to fund abortions, parental notification requirements for minors seeking abortions and other restrictions.
With a potentially more conservative court, O’Steen said that work would continue, though the focus could shift.
“The emphasis might change, but the pro-life lobbying and the pro-life activism as an organization would continue,” he said. “We want to pass the most protective laws we can.”
National Right to Life advocates banning all abortions, except to save a woman’s life. O’Sheen said there are about 3,000 local Right to Life chapters around the country.
Mallory Quigley, vice president of communications at the anti-abortion Susan B. Anthony List, said her group’s top priority is encouraging states – and ultimately the federal government – to ban abortion after 20 weeks of gestation.
In the absence of Roe, Quigley said she would expect a “vigorous debate” in multiple states over how much to restrict the procedure.
“This is really going to set the tone for the future of our nation,” she said.
Quigley also praised measures like Iowa’s recently-passed “heartbeat bill,” which prohibits abortion after a fetal heartbeat can be detected. That’s often around 6 to 8 weeks, before many women know they are pregnant. A judge blocked the law from taking effect, and advocates have said they hope it will make its way to the Supreme Court as a test case for Roe.
“This is what we ought to be seeing – the people being freed to have this democratic debate, to have this conversation, and to reach consensus within their states,” Quigley said. “The pro-life movement believes there’s really nothing for us to lose from having honest conversations about what goes on during an abortion.”
Limits of state law
Reproductive rights advocates warn that without the federal protections afforded by the Roe decision, more women will struggle to obtain the procedure and will seek out illegal and potentially dangerous abortions.
“We know that [banning abortion] doesn’t make abortion go away,” said McGorman, with NARAL. “We just know that it drives it underground and makes it a lot more either explicitly dangerous or significantly less safe.”
In interviews with NPR, abortion rights activists say they’re focusing their energy on blocking Kavanaugh’s confirmation by putting pressure on several key senators. Some also worry that, emboldened by a newly configured Supreme Court, abortion opponents will double down on efforts on both the state and federal level to pass restrictive laws.
And they say no amount of lobbying at the state level could replace Roe.
In a statement, Planned Parenthood spokeswoman Erica Sackin said the organization would “do whatever we can to protect people’s access to safe, legal abortion. That includes innovative thinking around our medical delivery as well as proactive and defensive state legislative strategy.”
But under the Trump administration, Sackin added, “Without the courts as an essential backstop, there is no amount of creative thinking that can safeguard people’s access to reproductive rights.”