The 2018 midterm elections paved the way for a slew of state-level legislation related to abortion on both sides of the issue. Alabamian and West Virginian voters approved anti-abortion rights amendments to their state constitutions, while Oregonians voted down a similar ballot initiative. With Democrats now in control of the governor’s mansion and both legislative chambers, New York is poised to become the first state to enact legislation that would enshrine Roe v. Wade abortion protections since Brett Kavanaugh was appointed to the Supreme Court.
States across the country are gearing up in case the 1973 landmark decision guaranteeing the constitutional right to an abortion is overturned. If that were to happen, access to abortion would become even more uneven than it already is with the existing patchwork of state legislation.
The ballot initiative in Alabama, known as Amendment 2, passed with 59.2% approval. It adds language to the state constitution to “recognize and support the sanctity of unborn life, the rights of unborn children — including a right to life in all manners and measures appropriate and lawful — and [declaring] that the constitution does not protect the right to abortion or require the funding of abortion.” While the amendment doesn’t immediately outlaw abortion in Alabama, it signals the intent to do so once allowed by federal law.
“Alabama’s amendment is designed to position the state to have perhaps the most restrictive abortion laws in the country should federal law be reinterpreted by the Supreme Court,” Randall Marshall, executive director of the American Civil Liberties Union of Alabama, said in an interview with Mic.
The sweeping language of the amendment, focusing on “the sanctity of unborn life,” could have far-reaching effects. Marshall said that it could very well be extended beyond restricting abortion access to policing a pregnant person’s decisions during pregnancy.
“Alabama already criminalizes women who use drugs while pregnant as conveying drugs to the fetus,” Marshall said. “So it’s not too much further down the road to have any number of activities that a woman can engage in while being pregnant come under scrutiny by the state.”
Kimberly Mutcherson, a vice dean and professor of law at Rutgers University in New Jersey who specializes in reproductive justice, told Mic that the amendment could also have implications for other areas of law beyond abortion. “For instance, is an embryo now an unborn life that the state should be protecting?” she asked. “And if that’s the case, what happens with the fertility provider who negligently ends up destroying somebody’s embryo? Is that a property crime? Is it murder or manslaughter? Those things become really slippery when states decide they can declare when life begins and when life gets constitutional protections before someone is even born.”
Pro-abortion rights advocates are worried that conservative lawmakers are waiting in the wings to restrict all abortion access should federal protections be rolled back.
“With Brett Kavanaugh on the Supreme Court, the threat to Roe v. Wade is no longer a hypothetical,” Staci Fox, Planned Parenthood Southeast Advocates president and CEO, wrote in an email to Mic. “If Roe is overturned and with Amendment 2 in effect, there will be life or death consequences for Alabamians. Women — especially women of color and women with low incomes — already face systemic barriers in accessing health care. In a world where abortion is illegal, they will disproportionately bear the brunt of those consequences.”
In West Virginia, the new amendment states that “nothing in this constitution secures or protects a right to abortion or requires the funding of abortion.” The initiative passed with approval from slightly more than half of voters. Mutcherson said that West Virginia’s amendment was related to using state funds for abortion.
Currently 17 states have policies in place that direct state Medicaid funds to pay for medically necessary abortions. “Essentially [the amendment is] a way of banning access to Medicaid funds, which of course means that it’s a way of reducing access to abortion for women who are low-income and whose health care is paid for through Medicaid,” Mutcherson said.
Oregon’s midterm ballot initiative was similar to West Virginia’s, attempting to prevent public funds from being used for abortions. It failed by a wide margin, rejected by 64% of voters.
“The outcome was very satisfying, to know that Oregonians voted to uphold their values of equity and inclusion,” Jann Carson, ACLU of Oregon deputy director, told Mic. “Most importantly, this is a clear signal that Oregonians trust women to make their own decisions and understand that a right is not a right if you can’t access it.” The ACLU of Oregon actively campaigned to defeat the initiative.
The constitutional amendments in Alabama and West Virginia are not unprecedented. There have been 1,193 anti-abortion laws enacted at the state level in the last four decades; 401 of those laws have been enacted since the start of 2011, according to Andrea Miller, president of the National Institute for Reproductive Health.
“There has been this slow build-up ... since Roe vs. Wade,” Miller said in an interview with Mic. “State legislation against abortion … really ticked up significantly after the 2010 midterm elections, when there was a huge backlash against President Obama, not only in Congress, but also in state legislatures.”
She added that while the anti-abortion measures in Alabama and West Virginia are troubling, changes following the midterms have also created an opportunity for states to enact proactive policies to protect abortion rights and improve access to reproductive health care. “We’ve seen that happen at other times when there has been a real threat … and a real belief that we might lose the protection under the federal constitution,” Miller said.
She explained there was a similar movement of states that added protections for abortion in the early 1990s, when there was fear that a conservative Supreme Court might strike down Roe v. Wade.
“We are back in another one of those cycles with the confirmation of Justice Kavanaugh and the fact that President Trump in his short tenure in office has had the opportunity to appoint not just one, but two justices to the Supreme Court,” Miller said. “Both of them have been very clear about their antipathy toward women, women’s rights, equality and access to [abortion].”
A person’s access to abortion already varies widely from state to state. States such as California and Massachusetts have protection of abortion rights enshrined in their state constitutions — nine states in total have legislation in place that protects a person’s right to abortion. Four states have “trigger laws” which would outlaw abortion immediately or soon after Roe v. Wade was overturned, and nine others have pre-Roe bans still on the books, according to the Guttmacher Institute.
Alabama and West Virginia are not the only states where there has been a gradual chipping away of abortion rights. In 2014, for instance, voters in Tennessee amended the state constitution to withdraw existing abortion protections. On the other hand, some states have added extra protections to ensure access to the procedure should Roe v. Wade be overturned. In 2017, Delaware became the first state to enact legislation ensuring abortion remains legal in response to Trump’s election. Oregon Gov. Kate Brown also signed into law the Reproductive Health Equity Act, which requires private health insurance plans to provide access to reproductive health and related preventive services.
Other states are ready to follow Delaware and Oregon. Lawmakers in New York are ready to push through a Reproductive Health Act when the 2019 legislative session begins in January.
“New York actually has the opportunity, for the first time in more than a decade, to enshrine into our state laws the right to make reproductive health decisions, including abortion,” said Miller, whose organization has been one of the main advocates for the act.
While the proposal has repeatedly passed the state assembly, the New York State Senate, which was previously Republican-controlled, has not allowed the bill to come to the floor. “It was only thanks to this midterm election that we now have the trifecta that we need,” she said, referring to Democratic control of the governorship, state assembly and state senate.
While the battle for abortion rights is playing out at the state level, many are also looking toward Washington, D.C., to see what will happen with a conservative majority on the Supreme Court. Mutcherson expects that the most likely course is that the Supreme Court will continue to expand the ability of states to regulate access to abortion services.
“I’m imagining that what we’re going to see is another abortion case that is going to wind its way to the court in the next few years,” she said. “I don’t think that they’ll necessarily overturn Roe, but they might make Roe so empty that it doesn’t really provide much protection anymore.”
Even if Roe v. Wade were to be overturned, it doesn’t mean that there would be no access to abortion in the United States. It would, however, impact who had access to abortion in states that did not have state-level protections in place.
“Even pre-Roe, there were always women who had access to abortion services and often those were women who had race and class privilege,” Mutcherson said. “They could travel if they had to, they could leave the country, they could get their private physicians to do abortions for them. Those women were always going to be fine. The women who aren’t going to be fine are lower-income women, women who are undocumented and younger women, who tend to have more difficulty getting access to abortion services. Those are the women who are really going to suffer.”
Nov. 13, 2018, 11:42 a.m.: This post has been updated.