Building state power is the only way to protect abortion access

By all accounts, the Supreme Court is poised to upend 50 years of our constitutionally protected right to abortion in Dobbs v. Jackson Women’s Health Organization. This effort is not in a vacuum. With Congress gridlocked by the filibuster and a nationwide effort underway to restrict access to the ballot box, conservative leaders are opening the door, inch by inch, to strip away the rights of individuals across the country. Reproductive rights are at the top of their list. 

While the debate around this issue is hyper-focused on the Supreme Court, we are collectively overlooking the most important battleground of the abortion rights fight: state legislatures. Texas’ blatantly unconstitutional abortion ban, SB8, makes it clear: anti-abortion lawmakers will introduce new, egregious bills at the state level to thwart abortion access — and SCOTUS made it clear they will allow it.

The moment we’re in is a direct result of generations of underinvestment at the state level and an overreliance on the courts. Protecting abortion access requires transforming our state legislatures. 

Without building state power, and ensuring lawmakers have the tools they need to enact policies their constituents want, the consequences for abortion rights will be nothing short of disastrous. Already, 21 states have existing laws or statutes that may make abortion illegal following a hostile decision by the Supreme Court. Another five could soon follow, based on their legislative makeup and recent history — that’s half of the country poised to restrict or eliminate abortion rights altogether. 

Fortunately, some states have already acted to protect the legal right to abortion. In 2019, New York enacted the Reproductive Health Act to codify the Roe v. Wade ruling into state law, and Illinois enacted a similar law to protect all individual decision-making around reproductive health, including abortion, contraception and pregnancy care. In 2021, New Mexico repealed a pre-Roe law on the books that criminalized abortion, ensuring legal abortion is protected in the state if Roe is further weakened or overturned at the federal level. Michigan has introduced a similar bill.

But protecting the legality is only step one. State legislators now have a duty to unapologetically protect the abortion access people everywhere will need in the face of a confusing and ever-changing landscape. It’s time for new, bold policies that must originate from statehouses. 

First, states must put their money where their mouth is by removing any public or private insurance coverage restrictions on abortion, like Washington state has done. Even better? Look to New York, where Attorney General Letitia James has called for the creation of a state fund to support the cost of transportation, accommodations and abortion care for patients seeking care if their own state has banned abortion.  

Then, states can make sure they expand their provider pool to meet the needs of thousands of patients crossing state lines to access abortion care. California and Maine have ensured health care professionals like physician assistants and advanced practice registered nurses can provide abortion care. Good policies can also look like Massachusetts’ bill to make medication abortion available on college campuses, or a plan in Georgia to ensure that communities of color are centered in any new legislation to protect abortion rights. And it goes without saying states can repeal any other existing abortion restrictions on their books, like Virginia and Illinois have done recently. New Jersey has moved to protect abortion clinic employees from possible harm, while Connecticut aims to mitigate the harm of deceptive crisis pregnancy centers. 

Of course, many states cannot and will not pass laws to protect or expand abortion rights — yet. We’ve spent too many years ignoring state legislatures and pinning all our hopes on Congress or the courts. But there are structural changes we can make so state legislatures are much more responsive to the needs of women, communities of color, immigrants and poorer people who have been shut out of the democratic process for too long and are most affected by unpopular policies like abortion restrictions. Only by making state legislatures more representative of the electorate will we begin paving the way for more inclusive, progressive state policies. 

This starts with increasing legislator pay, providing funding to lawmakers so they can hire staff support, and considering a move toward full-time legislative sessions. In many states, legislators work part-time although their communities need them year-round, are paid very little (if at all), and have to juggle their legislative duties with another job and their personal life for months on end. This results in disproportionately wealthy, white people being more likely to take the financial risks associated with running for office and serving as a state lawmaker.  

The best time to have invested in building power in states was a generation ago; the next best time is now. After all, this is not the time for politics as usual: The bodily autonomy and reproductive dignity of millions are about to be dismantled. After a decision from the Supreme Court, it will be up to state legislators to determine the future of abortion access. We look to them to take up that mantle.

Kelly Baden is senior vice president at the State Innovation Exchange, an organization that works with 3,500 state legislators nationwide to advance progressive policies. 

Jennifer Driver is senior director of reproductive rights at the State Innovation Exchange.