The nefarious network of state bills trying to kill ‘Roe’ once and for all
Last year, as Maggie, a 30-something Brooklynite, navigated the coronavirus pandemic, she learned that she would have to navigate another, more personal challenge at the same time: getting an abortion. For Maggie (who declined to provide her last name for privacy reasons), finding a compassionate abortion fund to help walk her through her options wasn't difficult, and she could easily pay the out-of-pocket cost for the abortion pill. Her partner of 11 years was supportive of her decision. In the end, accessing her abortion was so easy that it actually reminded her of all the ways politicians attempt to restrict abortion access — and how many other people who might need abortion care live in states where things aren't as smooth as they are in New York.
"To have this as a uniform service would make things so much better and cover so much missing ground for women out there who are struggling with this decision and access," Maggie says.
This "missing ground" that Maggie is referring to has been created by the patchwork of laws passed by state legislatures that have chipped away at abortion access since 1973, when the Supreme Court ruled in Roe v. Wade that the government could not pose an undue burden to patients seeking abortion care. In the near half-century since that landmark decision, individual states have put laws on the books to restrict abortion access as well as limit reproductive freedom, particularly of low-income birthing people. But on a larger scale, these laws are designed to do something even more insidious: trigger a new judicial fight that will overturn Roe.
Advocates for abortion care are steadying themselves for the battle. "I'd say, [in] the last year and a half or so, [we've been] ramping up and figuring out how we would navigate an even more restrictive environment where Roe is decimated," Yamani Hernandez, executive director of the National Network of Abortion Funds (NNAF), tells Mic. That preparation involves helping state-level abortion funds raise as much money as they can so that anyone who needs abortion care can access it, regardless of income.
And the fight against Roe is imminent. The 2020 appointment of Supreme Court Justice Amy Coney Barrett solidified a 6-3 conservative majority on the high court, thus making it much more likely that the justices will vote on the next abortion-related case to reverse Roe's protections. The conservative tilt on the bench, coupled with the introduction of state-level bills that limit abortion access and stigmatize the procedure, means that we're living through a period of "unprecedented" attacks on abortion, according to the Guttmacher Institute, a reproductive policy think tank. Case in point: Guttmacher says over 500 abortion-restricting bills have been introduced at the state level in the past decade.
The reason for the glut of new bills is simple: If they do pass, they will almost certainly be challenged in a lower federal court. Then that decision will likely be appealed to a higher court, and a subsequent appeal might potentially be taken up by SCOTUS. It's all part of a "coordinated attempt between state legislators and national organizations and other anti-abortion folks to chip away at the protections that the Constitution provides for abortion," says Elisabeth Smith, the chief counsel for state policy and advocacy at the Center for Reproductive Rights.
A few current contenders: a new bill in Mississippi that would make it a felony to provide an abortion; another in Arizona that would allow abortion providers to be charged with homicide; a just-passed bill in South Carolina that would ban abortion after six weeks of pregnancy, which the governor is reportedly "eager" to sign into law; and a new bill in Arkansas would ban abortion in all cases except to save the life of the birthing person, which excludes provisions for rape or incest.
The large majority of bills are likely to be struck down by the federal court system, Smith says, and CRR itself will be litigating the new South Carolina abortion ban. But the legal fight is the point, she explains; it's not so much about passing these individual state bills without incident, so much as it is about using them to get the ultimate victory: a national ban. The authors and proponents of these bills know that one of the Supreme Court's responsibilities is to provide guidance to states about which laws are constitutional and which aren't. And if the high court decides to hear, say, a case from Mississippi that bans abortions after 15 weeks of pregnancy, the ruling in that case could have a massive impact on abortion care nationwide.
Many of these legislative attacks have already been successful. According to the Center for Reproductive Rights's "If Roe Fell" interactive tool, the vast majority of states do not have protections in place to guard against a potential reversal of Roe. Only seven states, including California and New York, have laws on the books that strengthen, expand, or codify abortion access by state law or state constitution (i.e., separately from Roe's national protections). But for those living in the other 43 states, abortion will likely be outlawed or at the least severely restricted if Roe falls.
"The Supreme Court has had to sometimes hold the line, and then sometimes it's let the line slip on abortion."
If that happens, abortion access would be thrown into a sort of purgatory: not fully legal, but not fully illegal. For instance, Virginia does not have a state constitutional amendment guaranteeing abortion access or any state law codifying a right to abortion care, but it doesn't have any restrictions on the books, either. The same goes for Colorado, a state that historically has been tolerant of abortion access. "Colorado does not have very many restrictions or bans, [and] there are multiple providers," Smith says, but "if Roe was to be limited or overturned, there would be a question about the level of protection those providers would have."
Rosann Mariappuram, the executive director of Jane's Due Process, a Texas-based organization that helps minors access abortion care, tells Mic that "the Supreme Court has had to sometimes hold the line, and then sometimes it's let the line slip on abortion." She's referring in part to the 20-week abortion ban, which the Supreme Court allowed to take effect after a 2016 battle over a package of laws in Texas that became nationally known as House Bill 2. That move inspired Louisiana to use the same model in 2019, when the state passed an identical piece of legislation to Texas's House Bill 2 that was ultimately struck down by SCOTUS in 2020.
In the case of House Bill 2, the court didn't allow the law's other restrictions to take hold, like the demand that abortion providers retain unnecessary and arduous hospital admitting privileges. These kinds of provisions are known as "TRAP laws," short for Targeted Restrictions on Abortion Providers, and are exactly the kinds of laws that make their way through the court system and up to the justices.
Importantly, though, the split on the bench in 2019 was 5-4; Barrett had not yet replaced the late Justice Ruth Bader Ginsburg. "Now, we don't have the 5-4 majority, and there are multiple cases percolating through the [federal court system] that could severely restrict access," Mariappuram tells Mic. She notes that even if the court decided that a 15-week ban was constitutional by redefining the standard of fetal viability to be 15 weeks instead of the 24-week mark established in Roe, "that would be a huge blow."
That's because a number of states have 15-week bans on their books that would be made state law immediately by such a decision. It "would have the same outcome of basically making abortion illegal," Mariappuram says.
"The reality for Indigenous communities and peoples is that there have been so many legislative acts" that have prevented them from accessing reproductive autonomy.
Nicole Martin, an organizer with Indigenous Women Rising, a New Mexico-based abortion and midwifery fund, says that the increasing legislation of abortion is a continuation of settler-colonialism that's embedded in the framework of the U.S. These colonial systems impose what Martin calls a "mentality of power and control" that affects the lives and communities of Indigenous people in particular, as well as the resources available to them.
"The reality for Indigenous communities and peoples is that there have been so many legislative acts" that have prevented them from accessing reproductive autonomy, she says, including the Indian Health Services's (IHS) forced sterilization of Native women and girls and the fact that federal funds cannot pay for abortions, which means that Native patients who receive abortion care through the IHS are forced to pay out of pocket. The situation is particularly difficult for these communities because the U.S. tries to make "Indigenous people codependent on settler state infrastructures," Martin says.
As it stands now, New Mexico is relatively tolerant of abortion compared to other states. But "when you have more restrictions in one state, that means you often have to travel to another state" to access care, Hernandez says, noting that NNAF clients travel an average of 100 to 150 miles for care. The potential dismantling of Roe would centralize abortion care in just a few states, making it even harder for someone to access the procesure.
Even still, one state's lack of abortion restrictions does not make up for a national, permanent protection of reproductive rights. No central network of governmental or institutional abortion providers and advocates exists to help patients secure access to the procedure; Planned Parenthood probably comes closest, but even they struggle with providing services to some under-resourced communities. And with more attempted assaults on Roe pouring out of statehouses every day, it's up to individual organizations like Indigenous Women Rising to pick up the slack.
"If our tribal or state or federal governments are [not] gonna do it, we have to be the ones to be able to take on that responsibility to lead with the core values of community," Martin says about protecting abortion access for Indigenous peoples.
It's important, necessary work. But it should not fall to her to do it.