State Watch

States gear up for abortion fights with eye on Supreme Court

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State legislators across the country are preparing a new round of measures to crack down on or expand access to abortion services as supporters and opponents plot a growing legal battle that is likely to end at the Supreme Court.

In states controlled by Republicans, legislators are promoting new bills to severely limit abortion access. A South Carolina measure would ban abortions six weeks after conception. Iowa legislators are considering a ballot measure to roll back abortion protections in the state constitution.

Florida legislators will consider a bill to require parents of a minor seeking an abortion to give consent before the procedure takes place. In Michigan, legislators are working to ban a common abortion procedure by gathering signatures from registered voters, a method that would allow them to circumvent Gov. Gretchen Whitmer’s (D) veto pen.

Perhaps the strictest measure being debated this year is in Ohio, where legislators are considering a bill that would make performing or receiving an abortion a crime punishable by long jail sentences. Gov. Mike DeWine (R), who has signed other abortion restrictions into law, has not said whether he would sign the measure currently being debated.

The rush of anti-abortion legislation builds on a new approach conservative lawmakers have taken in recent years.

After a virtual stalemate for much of the first decade of the century, the last 10 years have seen a spike in abortion restriction measures. States have passed more than 500 abortion restriction measures since 2010, according to the Guttmacher Institute, which supports abortion rights.

In 2019 alone, 17 states passed a total of 58 new measures restricting abortions. About half of those would ban most or all abortions, while the remainder focused on new restrictions on abortion clinics or doctors who perform the procedures.

“Abortion restrictions are still a front-burner issue in many states,” said Elizabeth Nash, who directs state policy at the Guttmacher Institute.

Many of those laws were immediately challenged in federal court by abortion rights advocates — challenges abortion rights opponents welcome. Those advocates hope lawsuits over new restrictions make their way to the Supreme Court, where a conservative majority could strike down Roe v. Wade.

“States are well aware that any time they pass a pro-life law it’s going to go to court. That’s the pro-abortion side’s playground, the court,” said Sue Swayze Liebel, who directs state policy at the anti-abortion Susan B. Anthony List. “Roe v. Wade is on the ropes. I think both sides know it.”

The new conservative majority that includes Justices Neil Gorsuch and Brett Kavanaugh will have its first opportunity to weigh in on abortion legislation in March, when it hears arguments over a 2014 Louisiana law that requires doctors who perform abortions to have admitting privileges in nearby hospitals.

“That case will probably clarify where the Court is on abortion rights,” Nash said.

Several more lawsuits challenging more direct restrictions on abortion are working their way through federal courts. The American Civil Liberties Union has challenged restrictions in Alabama, Arkansas, Kentucky, Ohio and Georgia, among others.

Liberal states controlled by Democrats are taking their own steps to protect abortion rights, in the event that the high court does strike down Roe. In 2019, four states — Illinois, New York, Rhode Island and Vermont — passed measures protecting abortion access.

This year, Massachusetts is considering its own bill to codify the rights guaranteed under Roe. Illinois legislators are trying to repeal a state law that requires parental notification if a minor seeks an abortion. And New Mexico legislators are trying to roll back abortion bans passed before the Roe decision that remain on the books.

New Jersey Gov. Phil Murphy (D) signed legislation last week that will give Planned Parenthood $9.5 million, money the group lost when the Trump administration implemented a rule barring federal funding of clinics that informed women where they could receive an abortion.

Virginia represents perhaps the most promising ground for abortion rights advocates. Democrats won control of the state House and Senate in elections held last November, and party leaders are contemplating several proposals to expand or strengthen rights to abortion access.

While abortion laws shift dramatically depending on which party holds majorities, public opinion about abortion has been relatively unchanged for decades. Gallup polling stretching back to 1975 shows about a fifth of voters say abortion should be illegal in all circumstances. About a quarter say it should be legal under all circumstances, and a little more than half say abortion should be legal only in certain circumstances.

The number of Americans who call themselves “pro-choice” is virtually equal to the number who call themselves “pro-life,” according to Gallup surveys.

That mirrors polling conducted by the Pew Research Center, stretching back a quarter-century, that shows about 60 percent saying abortion should be legal in all or most cases, and about 40 percent who say it should be illegal in all or most cases.

Seven in 10 voters told Pew pollsters last August that they did not want to see the Supreme Court overturn Roe v. Wade, including half of Republicans and those who lean toward the GOP. 

Tags Brett Kavanaugh Neil Gorsuch Pew

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