Abortion rights advocates and opponents are racing to pass some of the most aggressive laws in recent history as each side prepares for coming legal fights that are likely to culminate in a new challenge to Roe v. Wade.
Those involved in the fight say Supreme Court Justice Brett KavanaughBrett Michael KavanaughGraham tries to help Trump and McConnell bury the hatchet Republicans keep distance from 'Justice for J6' rally Senators denounce protest staged outside home of Justice Kavanaugh MORE’s confirmation last year has spurred both sides to action.
Conservatives have advanced new restrictions that go well beyond constitutional limits set by Kavanaugh’s predecessor, former Justice Anthony Kennedy, while liberal states are working on measures to protect abortion access in the event that Roe is overturned.
“This has been one of the most prolific legislative seasons that I’ve seen in many, many years in the abortion debate. I think that the Kavanaugh hearing and the potential maybe for one more seat on the court is putting states on notice that, likely, Roe may be overturned,” said Sue Swayze Liebel, who directs state policy for the anti-abortion Susan B. Anthony List.
Already this year, legislators in six states passed laws meant to present a legal challenge to Roe. Six states have passed measures known as “trigger” laws, which would ban abortions in case the Supreme Court strikes down Roe.
On Tuesday, Georgia Gov. Brian Kemp (R) will sign legislation that bans virtually all abortions after six weeks. Ohio Gov. Mike DeWine (R) signed a similar measure last month.
Later this week, the Alabama Senate will vote on a measure to ban all abortions, except those necessary to protect the health of the mother, after the state House passed the bill last week.
Wisconsin Republicans are bringing up four bills that would limit funding for abortion providers, prohibit abortions based on a fetus’s race, gender or health symptoms, and require a doctor to tell women who seek drug-induced abortions that they can reverse the process after the first dose is taken.
The Texas Senate passed a measure last week requiring women seeking an abortion to undergo outside counseling before they undergo a procedure.
In Kansas, Gov. Laura Kelly (D) last week vetoed a measure requiring doctors to inform women seeking drug-induced abortions that they can reverse the treatment. Her veto survived by a single vote in the legislature, though Republicans have signaled they will bring another version up for a vote.
Most of the measures that have passed in recent weeks generated immediate legal action, as abortion rights advocates moved to block their implementation. Those lawsuits were expected — in fact, encouraged — by abortion opponents who hope that legal challenges make their way through federal courts and, eventually, to the Supreme Court.
“Pro-life states are more hopeful than they’ve been in a long time because they see some of this shifting at the federal level, so they’re being more bold in their efforts to restrict abortion activity,” Liebel said. “In some instances, they’re rushing to out-pro-life each other.”
Advocates on both sides say the focus of new legislation has changed since Kavanaugh replaced Kennedy on the high court. With little hope of winning over Kennedy, abortion opponents tightened restrictions around the edges, demanding more reporting and imposing new restrictions on clinics or mandating longer waiting periods before a woman got access to an abortion.
Now, conservative legislators see a greater opportunity to strike down the Supreme Court precedent that has stood in the way of more aggressive restrictions.
“We are seeing a real increase in abortion restrictions moving through state legislatures,” said Elizabeth Nash, a state policy analyst at the Guttmacher Institute, which supports abortion rights. “We’re just seeing a lot more of that kind of legislation moving, versus what we’ve been seeing moving for many years around waiting periods or abortion coverage restrictions or clinic regulations. Right now the focus is on abortion bans.”
Abortion rights advocates are pushing back in states where Democrats control the legislature. Ten states have passed trigger laws of their own, codifying the right to access an abortion in the event that Roe is struck down.
New York Gov. Andrew Cuomo (D) in January signed a law protecting abortion rights, including access to late term abortions if the woman’s life is at risk. The new law also allows physician assistants to perform some types of abortions.
Several other Northeastern states are likely to add their own pro-Roe measures in the coming weeks. Nash said legislators in Vermont, Rhode Island and Massachusetts are likely to move similar bills.
Nevada legislators are debating several measures to eliminate parental notification rules and to change informed consent rules that require doctors to counsel women seeking an abortion.
The new laws are widening the already yawning chasm in access to abortion services between red states and blue states. Many conservative states have passed measures so onerous that only a handful of clinics remain; Mississippi, Missouri, North Dakota, South Dakota and Wyoming all have just one clinic legally allowed to perform abortions, according to the Guttmacher Institute.
“This is even more of a political football now,” Nash said. “When we think about potentially abortion rights being undermined or overturned, the existing divide is further exacerbated.”
At the same time, the number of abortions performed in the United States has fallen to the lowest levels since just after Roe v. Wade was decided. Data from the Centers for Disease Control and Prevention and the Guttmacher Institute show the number of abortions steadily dropping over time.
Guttmacher, which most researchers believe produces more complete data than the CDC, estimated 926,000 abortions were conducted in 2014, the last year for which data are available. The CDC estimated 638,000 abortions were conducted in 2015, though that figure does not include procedures performed in California and New Hampshire, which do not report their statistics to the agency.