Quick question: Do you know who your state representatives are? If you care about reproductive rights, now is the time to find out. As the adage goes, elections have consequences. And for women in 2018, the stakes of the upcoming midterm elections could not be higher.
The Supreme Court vacancy created by Justice Anthony Kennedy’s retirement — which becomes official today — has placed abortion rights front and center of election year politics, with many reproductive rights advocates pointing to state legislatures as are our best hope at preserving the right to choose. “The best defense against a hostile president, a hostile congress, and now a hostile Supreme Court is a state-level offense,” says Andrea Miller, president of the National Institute for Reproductive Health (NIRH). “Unfortunately there are quite a number of states that have passed numerous restrictions on reproductive healthcare, particularly abortion care, over the past few years. But the good news is we’re finally starting to see a groundswell in the opposite direction.”
So far in 2018, 404 bills aimed at protecting or expanding access to reproductive healthcare were introduced in 44 states and Washington D.C., according to the NIRH 2018 mid-year report. A total of 63 bills were fully enacted, including 3 bills to expand access to abortion services and 19 to expand contraceptive services. Just last week, Massachusetts’ Republican Gov. Charlie Baker signed into law a repeal of the state’s 173-year-old abortion ban, following in the footsteps of Delaware, which modernized its abortion law last summer so that the procedure would remain legal, regardless of what happens with the courts. Oregon, Washington, and Illinois also passed progressive state laws in 2017 that not only reaffirmed the right to abortion in those states, but also expanded insurance coverage for abortion.
Still, in large swaths of the country, abortion would become immediately illegal if Roe V. Wade, the landmark 1973 Supreme Court decision that legalized abortion, were overturned. Four states have so-called “trigger laws” on the books, which say specifically that abortion would be immediately outlawed as soon as Roe falls. Another nine states have pre-Roe bans (like the one Massachusetts just updated) still on the books, and yet another seven states have laws that “express intent to limit abortion to the maximum extent permitted,” according to a tally by the Guttmacher Institute.
At the same time, new attacks on abortion rights have intensified, as abortion opponents see the political winds changing in their favor. In 2018 alone, three states passed unconstitutional “pre-viability” bans: Mississippi and Louisiana both passed laws banning abortion after 15-weeks, while Iowa passed a 6-week abortion ban. All three laws have been blocked or halted by the courts in legal challenges, but proponents of the bans hope that they become the case that could overturn or severely undermine Roe.
All of this is just the latest in a long-standing extremist streak that first picked up in 2010, when Republicans — particularly hard-right, Tea Party conservatives — swept state legislatures across the country. Between 2011 and 2018, more than 400 abortion restrictions were passed in 33 states. Although states have been attempting onerous restrictions on abortion access for decades, the amount and severity of the laws passed in the past 8 years is unprecedented, explains Elizabeth Nash, senior state issues manager at the Guttmacher Institute.
The pinnacle of this wave of anti-choice laws is Texas’ HB2, the 2013 law that introduced so many onerous restrictions, including expensive clinic regulations and an admitting privileges requirement for abortion providers, on top of a 20-week ban, that half the state's abortion clinics were forced to close. That law ended up being the subject of the 2016 Supreme Court case Whole Woman’s Health v. Hellerstedt, when Justice Kennedy once again sided with the liberal justices, striking down the law and establishing that state laws could not cause an “undue burden” on women’s access to abortion.
This was a huge victory of course — one that now seems like the last one we will see from the court for a long time. President Trump, who once considered himself “very pro-choice,” promised to appoint pro-life judges to the court, and both his first nominee Associate Justice Neil Gorsuch and his second, Judge Brett Kavanaugh, seem to fit the bill. The result: “The level of freakout has risen enormously. When the Trump Administration came in there was definitely concern, both at the federal and state level,” Nash says. “Now that concern has only grown because the courts play such a pivotal role in protecting legal abortion in this country.”
But all is not lost — not yet. For starters, Kavanaugh still needs to get through the Senate confirmation process. Democratic Senators, many of whom have already signaled their opposition, are fighting for access to more than a million pages of Kavanaugh's judicial and administrative records, which they say are imperative to understanding his views. (Republicans see this as a delay tactic.) Meanwhile, women's groups on both sides of the issue are also mobilizing to influence the Senate's decision. The anti-choice conservative women's group, Concerned Women For America, is hosting a bus tour to "state fairs, Chik-fil-As, and Bass Pro Shops" across 6 states in support of Kavanaugh's nomination, ABC News reports. Women's rights groups NARAL Pro-Choice America, Demand Justice, and Planned Parenthood are likewise launching a "Rise Up For Roe" rally tour, with events in 10 cities, as well as letter writing and op-ed campaigns in an effort to sway moderate Senators, including Maine's Sen. Susan Collins.
And then comes November. “The 2018 elections will be very important for clarifying how abortion rights will play out,” Nash says. She adds that history suggests we will see an increase in activity on the state level. For example, in the late ‘80s and early ‘90s many people believed that Roe was on the brink of being overturned, due to the political climate as well as developments on the court. In response, 5 states took action to codify Roe in their laws over just three years, through both citizen-initiated ballot measures and moves by the state legislature. “The point being that the public was concerned and so they took action,” Nash says. “That’s what we need now again. If Roe is overturned or undercut in some way, what we’re going to see is a very large divide in abortion policies between states that restrict versus those that protect. It would really then be a fight in the state capitols and how that plays out depends on who is active. People need to make their voices heard.”
With fewer than 100 days until Election Day, and a fight mounting in Washington over Kavanaugh’s nomination, there are plenty of opportunities for a pro-choice wave, especially at the state level. Nine state legislatures — Colorado, Wisconsin, Florida, New York, Minnesota, Maine, New Hampshire, Arizona, and Michigan — have been targeted as possible wins for Democrats this fall. “We’ve seen again and again in the primaries Democrats turning out more voters than Republicans. I think the tide is turning,” says Catherine Vaughan, the chief executive officer of Flippable, a group formed in the aftermath of the 2016 election to focus on flipping state houses from Republican- to Democrat-controlled. “With so many elections this year, we were very worried that what we’re working on with state elections would get lost. But a lot of people were galvanized by Kennedy’s retirement announcement.” Since then, weekly average donations to Flippable’s efforts have doubled, and traffic to their website increased by 35%, Vaughan adds.
Miller, who also leads the NIRH Action Fund, adds that changes in the Governor’s races in Ohio, Michigan, Pennsylvania, Florida, and New Mexico could be “game-changing” because even if the legislatures remain hostile to abortion rights, a governor’s veto power could hold the line. “It’s not that the congressional elections are not important too, but we must remember that top down states are the critical battleground,” Miller says. “They’re the key place of opportunity to mitigate if not reverse the kind of harm that we’re seeing coming from D.C.”