Supreme Court nomination reignites abortion fights in states

The possibility of another Trump nominee ascending to the Supreme Court bench has created a sense of urgency among abortion supporters in the states, where activists are pushing to safeguard access to the procedure. 

Supporters of abortion rights worry that Judge Brett Kavanaugh’s confirmation could lead to the weakening of Roe v. Wade, the landmark Supreme Court decision that cemented a woman’s right to abortion.

They’re encouraging state lawmakers to scrub unenforced laws banning or restricting abortion off the books, should the Supreme Court throw the decision on whether abortion should be legal back to the states. 

{mosads}“We’re seeing more states take a look at their codes and do a little bit of cleaning up old, archaic language that might be problematic in terms of getting abortion care,” said Agata Pelka, state legislative counsel with the Center for Reproductive Rights. 

Massachusetts Gov. Charlie Baker (R) last month signed a bill repealing an unenforced, 173-year-old ban on abortion, becoming the first state to do so following Kavanaugh’s nomination.

Nine other states also have unenforced abortion bans on the books. The laws became null after the 1973 Roe v. Wade decision, but they were never formally removed from state codes.

Pelka said that most of the statutes are either not being enforced or aren’t enforceable. But she said there are concerns that politically motivated prosecutors could “somehow use these old archaic statues to go after people directly.” 

The states with pre-Roe bans on abortion are Alabama, Arizona, Arkansas, Michigan, Mississippi, New Mexico, Oklahoma, West Virginia and Wisconsin, according to the Guttmacher Institute, an abortion rights research group. 

All of those states are ruled by Republican governors, who tend to favor abortion restrictions.

But advocates still hope those states will revisit old, unenforced bans on abortion. 

“As Trump has come into office, and the federal government has become more political, there’s been interest in states in having government reflect constituents,” said Leslie McGorman, deputy policy director at NARAL Pro-Choice America, which is working to sink Kavanaugh’s nomination.

“So I think we’re going to see perhaps more Republicans able to actually match the values constituents are looking for.”

McGorman noted that Baker, the Massachusetts governor, is a Republican. 

Massachusetts, however, is a liberal state compared to the other states with pre-Roe abortion bans. Still, advocates hope the elections in November could change the landscape.

All but two of those nine states, Mississippi and West Virginia, have gubernatorial elections in November. 

New Mexico’s race leans toward the Democratic candidate while Michigan is a toss-up, according to the Cook Political Report’s ratings of governor’s races. The other races favor Republican candidates, according to the nonpartisan election handicapper. 

Abortion rights activists are also fighting back against “trigger laws” — statutes in state code that would make abortion illegal if Roe is overturned. 

Four states have these, according to Guttmacher: Louisiana, North Dakota, South Dakota and Mississippi.

“We’re looking at legislatures, governors, attorneys general, really anyone who has a lever of power to protect [abortion] rights in the states,” McGorman said. 

In blue states, politicians are demanding more protections for abortion rights.

Governors in New York and Rhode Island have called on their state legislatures to reconvene in a special session to codify Roe v. Wade into state law. 

New York’s Democratic-controlled Assembly has passed the bill multiple times over the years, but the Senate has refused to call it for a vote. 

“We now need to codify Roe v. Wade, which will actually increase the protections in New York,” Cuomo said at a press conference last month. 

Maryland House Speaker Michael Busch (D) said earlier this month that he plans to lead an effort to enshrine abortion protections in the state constitution. 

“We’re really looking for legislatures and politicians to … look at their state and see what makes sense for them. If they have restrictions, to repeal it, and if they have protections, to enhance it,” McGorman said. 

Anti-abortion groups are also planning for the future of Roe v. Wade. 

While these groups have publicly hoped for years that the nominations of more conservative justices to the Supreme Court would result in the overturning of Roe v. Wade, they have backed off that rhetoric as Kavanaugh faces a tough confirmation hearing in the Senate. 

Kavanaugh needs the support of some red-state Democrats to be confirmed, and vulnerable Sens. Joe Donnelly (D-Ind.) and Joe Manchin (D-W.Va.), who are both up for reelection in November, have toed the line on abortion issues for years. 

Groups like the Susan B. Anthony List have launched multistate campaigns aimed at pressuring red-state Democrats into voting for Kavanaugh. 

Since Trump took office, anti-abortion lawmakers in the states have also ramped up their push for abortion restrictions as part of a strategy to get the Supreme Court to re-examine Roe v. Wade. 

In 2017, 19 states adopted 63 restrictions, the highest number since 2013, according to Guttmacher. 

In the first quarter of this year, five states adopted 10 abortion restrictions, and 347 measures had been introduced in 37 states.

In November, voters in West Virginia and Alabama will decide whether to amend their state constitutions to say abortion rights are not protected. 

Both ballot initiatives were in the works before Trump announced Kavanaugh’s confirmation. But anti-abortion groups have speculated since Neil Gorsuch was confirmed to the Supreme Court that Trump would get to nominate at least one more justice.

There’s a history of state legislatures trying to preempt Supreme Court rulings with legislation. 

In 1992, lawmakers and advocates worried that an abortion case at the Supreme Court — Casey v. Planned Parenthood — would cut back abortion rights. 

Then, Connecticut, Nevada, Washington and Maryland set legal standards for abortion into state law, said Elizabeth Nash, senior state issues manager at Guttmacher. 

“It’s similar to what we’re seeing now,” she said. 

“People are concerned about a path to abortion rights being rolled back, either in part, or completely. People are looking to see what states can do to protect access. That’s why we’re seeing these conversations.” 

States have passed laws protecting abortions preceding Kavanaugh’s nomination, some in anticipation of the Trump administration impeding access. 

Last year, Oregon’s governor signed a law prohibiting the state from “depriving” a person of an abortion, while Delaware’s governor signed a law allowing abortion up to viability, and after viability when necessary for the life and health of the mother. 

Delaware also repealed its pre-Roe abortion ban last year. 

Illinois’s Republican governor last year also signed a law reinstating public funding for abortion 

And more action could come when many state legislatures come back in session in January. 

“Even though this is kind of a scary moment to think of what’s happening, we’re seeing good, positive energy in states interested in expanding and protecting access in their states,” Pelka said.