In the face of imminent threats to legal abortion in the US, lawmakers and activists in left-leaning “blue” states are working to expand rights and access to the procedure.
State-level efforts to protect the right to abortion and reduce the cost of obtaining the procedure in states such as California, Rhode Island and Vermont are, in large part, a response to a forthcoming supreme court decision which could gut abortion rights nationally.
The landmark 1973 supreme court decision in Roe v Wade guaranteed pregnant people a constitutional right to obtain an abortion, invalidating dozens of state abortion bans that were in place at the time. However, many states never passed their own laws affirming a right to abortion.
Now, the newly conservative-leaning US supreme court looks willing to gut the right to abortion as it prepares to decide on a new case, called Dobbs v Jackson Women’s Health Organization. A decision in the case is expected in June.
If the court overturned Roe v Wade, it could return the issue of abortion to states, many of which have not updated their laws in decades or are actively hostile to abortion and are ready to enforce bans or severe restrictions.
In the event the US supreme court reversed Roe v Wade, 26 states would be certain or likely to outlaw abortion, while just 15 states and Washington DC have laws to protect abortion rights.
“Conservative legislators clearly feel they have the legal support to continue to pass abortion bans and restrictions,” said Elizabeth Nash, interim associate director of state issues at the Guttmacher Institute, a reproductive rights research center. Nash said researchers see “a real trend around abortion bans, including comprehensive and early bans”.
“Part of the issue is we simply have fewer progressive state legislatures than we do conservative ones,” said Nash. However, she is optimistic about efforts to affirm abortion rights and expand access in progressive states.
“Over the past several years we have seen more action in state legislatures to protect abortion rights than we had previously,” she said. “We look at 2019 – you had states from Illinois to Maine to Vermont and Rhode Island all looking to add statutory protections,” for abortion rights, momentum that has continued as threats to Roe v Wade have mounted.
Right-leaning lawmakers have long used abortion to rally their base, while protections conferred by Roe v Wade meant abortion was often ranked as a low priority for left-leaning voters. As a result, abortion rights legislation has languished for decades, even as rightwing politicians passed hundreds of restrictions.
Recent congressional efforts to codify the right to abortion in statute failed in the face of Republican opposition. Though the Democrat-led House of Representatives passed the Women’s Health Protection Act last year, which would have banned medically unnecessary restrictions on the procedure , the bill died in the Senate this week.
The bill required 60 votes to overcome a filibuster. Democrats hold 50 seats, and Republicans universally opposed the measure. They were joined by one Democrat, Senator Joe Manchin of West Virginia.
“We should have codified Roe in state law around the country,” said Liana Cassar, a Democratic state representative in Rhode Island. “But there was a belief we weren’t at risk – we weren’t at risk of losing access to abortion.”
That has changed since Donald Trump was able to confirm three justices to the supreme court, tipping the nine-member bench firmly to the right.
Now, left-leaning lawmakers are seeking to pass more protections for abortion. New Jersey became the first state in the nation to pass an abortion-related law in 2022, affirming the right to terminate a pregnancy and ordering a study of the barriers low-income women face to obtain the procedure.
In February, Vermont lawmakers voted to move forward on a constitutional amendment to guarantee the right to abortion and contraception. The measure – the first of its kind in the US – will appear on the ballot in November, and voters in the state are expected to approve it.
Rhode Island affirmed a right to abortion in state law in 2019, but left in place restrictions that banned the state’s employee health insurance and Medicaid, a health insurance program for the poor and disabled, from paying pay for abortion. Lawmakers are now working to allow Medicaid to pay for abortions and other services.
“This is a racism and a classism issue,” said Cassar, the sponsor of Rhode Island’s legislation. If passed, Rhode Island would join 15 other states that allow Medicaid to pay for abortions.
In California, the Democratic governor, Gavin Newsom, commissioned a Future of Abortion report, in part to examine the repercussions of abortion bans in neighboring states.
If the US supreme court allows states to ban or severely restrict abortion, a recent Guttmacher report found the number of out-of-state people who could find the nearest clinic in California could increase from 46,000 to 1.4 million overnight – a nearly 3,000% increase.
“Folks can fall into the thinking that advocacy, aggressive advocacy, to expand abortion access is not necessary,” said Onyemma C Obiekea, policy analyst for the Black Women for Wellness Action Project, a reproductive justice group which helped steer the Future of Abortion committee. However, potentially devastating supreme court rulings have, “really shifted that”.
One of the first recommendations lawmakers are tackling from the report would aim to further protect California residents from the high cost of abortion. California’s Medicaid program already pays for abortions. A new bill would end out-of-pocket costs for people who seek abortions and have private insurance.
That could reduce the cost of terminating a pregnancy by hundreds of dollars for about 9,600 of the 23,000 California women who seek abortions in the state each year, reducing the number of people who face high costs by 41%, according to the California Health Benefits Review Program. The bill would only impact people whose private health insurance is regulated by the state. The health insurance plans of about 5.7 million Californians are regulated by the federal government.
Perhaps the most ambitious efforts to protect abortion rights are taking place in so-called “purple states” such as Michigan, where – like Vermont – a coalition of reproductive rights groups are pushing a ballot initiative to provide a right to abortion in the state’s constitution. Currently, if the US supreme court overturned Roe v Wade, it could allow a 1931 law banning abortion to be reinstated. To get a question on the 2022 ballot Michigan groups need to collect more than 425,000 signatures, according to the Detroit News.
Michigan has Democratic governor but abortion rights legislation has no realistic chance of moving through the Republican-controlled statehouse, which prompted a drive to put the question to voters. The chances of the initiative succeeding are unclear. An initiative to legalize abortion in Michigan failed in 1972, just one year before Roe v Wade was decided.
In all states, powerful opposition to efforts to expand abortion rights and access has come from Christian anti-abortion organizations, the Catholic church and aligned Republicans. In just one example, the Catholic church has been among the most vocal opposition to Cassar’s bill in Rhode Island.
Even if more progressive states pass and expand access to abortion, millions people in states hostile to abortion would face insurmountable challenges to obtaining a legal abortion. This scenario is currently playing out in Texas, where state lawmakers have successfully enacted a law that bans abortion before most women know they are pregnant.
States like California are just “too far away” for many of the people who live in conservative southern states that are most likely to pass harsh abortion bans, said Michelle Anderson, state organizer with the Texas-based and Black women-focused reproductive rights justice group the Afiya Center.
“The bottom line is that abortion bans do not stop abortions,” said Anderson. “They just make abortions less safe, and this is especially true for Black women.”