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Abortion fight in states picks up as legislative sessions begin

State legislators are motivated to pursue either tougher abortion restrictions or protections
Published By Roll Call on January 19, 2022
Jena Powell In The News

The Supreme Court’s consideration of a near-total abortion ban in Texas and other limits in Mississippi are motivating state officials to pursue either tougher abortion restrictions or protections in case legal precedents change.

State legislatures, which often have more limited schedules than Congress, began returning this month. Some state lawmakers already filed bills for consideration in the coming weeks, with many Republican-led legislatures seeking to mirror the 2021 Texas law.

Since September, Texas has banned nearly all abortions after six weeks of pregnancy, using a legal maneuver that relies on citizen enforcement. Any individual can challenge someone suspected of aiding in an abortion, and the plaintiff would receive a $10,000 “bounty” in the event of a guilty verdict.

In mid-December, the Supreme Court said abortion providers had standing to challenge the Texas law but kept the ban in place as legal proceedings continue and made it harder for the clinics to ultimately prevail. This month, abortion advocates asked the high court to hear the challenge on an expedited basis.

The law was the first time a state implemented a six-week ban on abortion, gutting the 1973 Roe v. Wade decision establishing a national right to abortion. States including Georgia and Ohio enacted similar bans in 2019, but they never took effect because of litigation.

The start of sessions marks an opportunity for abortion opponents around the nation to test whether they also can restrict the procedure in their states, ahead of another expected Supreme Court decision this term: Dobbs v. Jackson Women’s Health Organization, the challenge to Mississippi’s 15-week abortion ban, which has never taken effect.

“We do believe that we will see a continuation of the bills we saw in 2021,” said Ingrid A. Duran, National Right to Life Committee’s director of state legislation.

Elizabeth Nash, interim associate director of state issues at the left-leaning Guttmacher Institute, said the Supreme Court will likely weaken or overturn abortion rights precedents. But abortion rights advocates are preparing a legislative offense in anticipation of additional states following Texas’ lead.

States such as Vermont and California hope to advance policies to protect rights to abortion and contraception in the state constitutions and accommodate a potential influx of patients from states where abortion access has been limited by legislation or the courts.

Following Texas

The Guttmacher Institute says lawmakers in at least 20 states, mainly in the South and the Midwest, have floated or prefiled legislation similar to the Texas ban. Different states are likely to tweak the bill’s framework to fit state requirements, such as changing the ban’s time frame, the penalty or the authority of the state attorney general to have standing to issue challenges.

“The Texas law can’t be copied and pasted into another state. It has to be kind of tailor-made for the state,” said Sue Liebel, state policy director for the Susan B. Anthony List.

But the Texas bill provides a blueprint for states such as Ohio, where a 2019 ban never went into effect.

Ohio GOP Rep. Jena Powell sponsored an abortion ban bill using the same enforcement mechanism as the Texas law. Republicans have a supermajority in both Ohio chambers and hold the governorship.

Powell pointed to a different anti-abortion bill enacted in December as an “indication that our state continues its pro-life stance.”

“It is always the right time to stand up and protect the most vulnerable and innocent in our society,” she said in a statement to CQ Roll Call. “With our Republican-led House and Senate, we believe passage is imminent.”

So far, 33 of 99 representatives have co-sponsored the bill. Opponents of the bill worry about the possible consequences.

“A total abortion ban being passed in Ohio and losing access in Ohio will be devastating for Ohioans and also people in neighboring states that are already traveling to Ohio to get abortions now,” said Lauren Blauvelt-Copelin, vice president of government affairs and public advocacy for Planned Parenthood Advocates of Ohio, who said patients would migrate farther to places like Illinois.

Florida and Missouri are among other states considering similar bills. Florida’s Constitution, however, has an established right to privacy, making a Texas-style abortion ban more difficult to enforce.

Florida state Rep. Anna Eskamani, a Democrat, said she is more worried about efforts to pass a bill similar to the Mississippi law the Supreme Court is considering.

“I think where Republicans are trying to manipulate the debate is by going after a 15-week ban because they’re trying to paint the picture that a 15-week ban is very moderate. And we’re making it clear to everyone this is not moderate. Any ban is extreme and of course all tied to a larger national goal of banning abortion completely,” she told CQ Roll Call.

Other restrictions

Some conservative lawmakers also hope to restrict medication abortions, a nonsurgical procedure that can end a pregnancy generally under 10 weeks of gestation. Eight states enacted laws on this type of abortion last year, though not all took effect.

The Food and Drug Administration loosened some requirements in December related to how the medication abortion drug mifepristone can be provided to patients, including by mail.

States may mirror another recently implemented Texas law that limits the window for providing a medication abortion from 70 days to 49 days — shorter than what the FDA recommends.

In the first week of state sessions, Duran pointed to action like the South Dakota Legislature’s Interim Rules Review Committee’s approval of an executive order that will prevent using telemedicine for medication abortions.

“Everyone on this side of the equation agrees that an in-person medical examination is required to rule out preexisting conditions that would make the pills harmful to women, like women that have an ectopic pregnancy,” Liebel said.

Kentucky Republicans also plan to introduce and consider a broader abortion bill this session, with similar language on medication abortions as well as parental consent requirements for minors seeking abortions and restrictions on disposal of fetal remains.

Advocates are also watching so-called trigger laws, which refer to abortion bans that are unenforceable unless Roe v. Wade is overturned. Twenty-two states have these laws that could be enforced if precedent changes.

Voters in Kansas and Kentucky are set to decide whether to approve language that there is no right to abortion in their state constitutions in August and November elections, respectively. Four states — Tennessee, West Virginia, Alabama and Louisiana — have done this by ballot so far.

Progressives' plans

Blue states are also trying to plan ahead in case the Supreme Court weakens national abortion precedents.

Jennifer Driver, senior director of reproductive rights at State Innovation Exchange, a nonprofit that works with state legislators to promote progressive policies, said she saw a rush of lawmakers introduce abortion restrictions to mimic Texas last year.

“On the flip side, you know, we saw kind of those progressive legislators really push back against anti-abortion legislators,” she said. “There are specific states that have already begun to introduce legislation or have drafted legislation that we expect to see to, you know, protect abortion access in their state.”

California is taking the broadest, most multipronged approach. The California Future of Abortion Council, spearheaded by Democratic Gov. Gavin Newsom, issued 45 recommendations in December for expanding abortion, including ways to subsidize women traveling from other states.

New Jersey Democratic Gov. Phil Murphy also signed legislation on Jan. 13 to codify protections under Roe v. Wade.

Vermont legislators plan to require a vote on a state constitutional amendment to include a right to reproductive freedom including abortion and contraception. This process involves both chambers passing legislation in two consecutive legislatures to go forward. In 2019, both chambers passed the bill, and the Vermont Senate again passed it in 2021. This year, the state House would have to pass the measure again for it to appear on the ballot this fall.

“With the changes in the U.S. Supreme Court and the future of Roe uncertain and now looking even more precarious, we thought it was important to enshrine this right that Vermonters have had for nearly 50 years into our Vermont Constitution, no matter what happens in Washington, D.C.,” said Lucy Leriche, vice president of Vermont public policy at Planned Parenthood Northern New England.

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