Protesters on both sides of the abortion issue gather in front of the Supreme Court building on January 18, 2019 in Washington, D.C. (Mark Wilson/Getty Images)

How States Are Preparing For A Potential Roe v. Wade Challenge

April 23, 2019
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by Priyanka Boghani Digital Reporter & Producer

Justice Brett Kavanaugh’s ascent to the Supreme Court last year brought the future of abortion access into question. Lawmakers and activists on both sides of the debate saw his confirmation — and a shift to a conservative-leaning court — as a step toward overturning Roe v. Wade, the 1973 decision that legalized abortion in the U.S.

Ahead of Kavanaugh’s confirmation, Sen. Kirsten Gillibrand, a Democrat from New York, warned that the Supreme Court would “take away and criminalize women’s reproductive freedom.” Sen. Lindsey Graham, a Republican from South Carolina, laid out his hopes for Kavanaugh: “If there’s a case before him that challenges Roe v. Wade [I hope] that he would listen to both sides of the story, apply a test to overturn precedent.”

Months after Kavanaugh’s confirmation, Roe v. Wade is still standing. But legislation across the U.S. indicates that states are bracing for the potential of a world without it.

FRONTLINE’s new documentary The Abortion Divide looks at how divisions over abortion have persisted in a community for more than three decades. And they will likely intensify if the Supreme Court reexamines Roe v. Wade.

If the landmark ruling is overturned, abortion won’t immediately become illegal. More likely, abortion would revert to being legislated on a state-by-state basis. Recently, legislatures have ramped up their efforts to either place limits on abortion access or to shore it up.

Over the past two months, Ohio, Mississippi and Kentucky have enacted some of the most stringent abortion restrictions in America. The laws ban most abortions once a fetal heartbeat can be detected, which can happen as early as six weeks into a woman’s pregnancy — in some cases before she has realized she’s pregnant. All the laws put in place so far have faced, or will likely face, legal challenges.

For anti-abortion advocates, that’s part of the plan. If legal challenges to the laws reach the Supreme Court, they could potentially be used to overturn or undermine Roe v. Wade.

“The heartbeat bill is the next incremental step in our strategy to overturn Roe v. Wade,” Mike Gonidakis, president of Ohio Right to Life, said when a version of the so-called fetal heartbeat bill was signed into law in his state.

According to the Guttmacher Institute, a research and policy organization that advocates for reproductive rights, 21 abortion restrictions were enacted in the first three months of 2019, with the largest trend being the fetal heartbeat bill.

“What we’re seeing this year is really unprecedented when we’re talking about early abortion bans,” said Elizabeth Nash, a senior state issues manager at Guttmacher. She said the shift in the court was the change abortion opponents had been looking for. “What we’re seeing is the floodgates opening at the state level.”

States have also passed legislation banning a certain method of abortion, known as dilation and evacuation, which is the most common procedure used after 14 weeks of pregnancy. In April, North Dakota became the latest state to enact such legislation, and Ohio adopted a similar law late last year.

Some of the same states that have passed other restrictions on abortion have taken an additional step: adopting laws that would ban abortion immediately if Roe v. Wade is overturned. Arkansas passed this type of “trigger law” in February, followed by Kentucky, which passed it in March. Four states have had such laws on the books since the mid-2000s: Louisiana, Mississippi, South Dakota and North Dakota.

“The idea of trigger laws, in part, is that you preclude there being a protracted struggle after Roe, because you’ve already clarified what the law is going to look like ahead of time,” said Mary Ziegler, a professor at the Florida State University College of Law and author of two books about Roe v. Wade. “They can also serve a signaling function, in the sense that legislators are sending a message to voters that they would ban abortion if they could.”

On the other end of the spectrum, some states are fortifying abortion access. In January, New York enacted a law that removed abortion from the state’s criminal code and added language stating that individuals who become pregnant have “the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion.” It also allows abortions after 24 weeks of pregnancy if one is necessary to protect the patient’s life or health, or if the fetus isn’t able to survive outside the womb. Defenders of the law, which was signed on the 46th anniversary of Roe v. Wade, said it followed the standard set by the 1973 Supreme Court decision. Critics of the law called it a “radical expansion of abortion on demand.”

When Gov. Andrew Cuomo signed the New York law, he explicitly referenced the possibility of Roe v. Wade being challenged. “We are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body,” he said.

Legislation protecting the legality of abortion has passed at least one chamber in the legislatures of Rhode Island and Vermont (which has also begun the process of potentially amending the state’s constitution to protect abortion access). It is being considered in some other states, such as Illinois.

Anti-abortion lawmakers have also begun turning to state constitutions. Voters in West Virginia and Alabama approved anti-abortion constitutional amendments last fall, which would ensure that if Roe v. Wade is overturned, state courts will rule on abortion legislation based on its constitution.

“Let’s say abortion rights are stripped at the federal level and the state legislature passes an abortion ban — if there’s going to be a challenge, it would have to be done through the state constitution,” Nash said.

With states taking actions on each side of abortion access, Ziegler sees a potential post-Roe future that exacerbates differences across state lines.

“We already have a patchwork of abortion laws, and to some extent we’re already living in that world, because abortion access varies a lot from state to state,” she said, pointing out that some states only have one abortion clinic left, while others have several. “If Roe were overturned, that effect would be magnified significantly.”

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