The States Shoring Up Abortion Rights for the End of Roe

Pro-choice supporters participate in a rally for reproductive rights in Los Angeles on October 2. Photo: CAROLINE BREHMAN/EPA-EFE/Shutterstock

As we await the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which is widely expected to strike down or at least significantly weaken Roe v. Wade, there has been a flurry of legislative activity in the states, which may soon control abortion policy, as they did in the days before the landmark 1973 ruling. Most of the attention has been on Republican-run states, some of which have long had “trigger laws,” designed to reimpose abortion restrictions the minute the Supreme Court allows them. Now there is even some infighting between red states emulating the Mississippi law the Court is likely to approve, which bans abortion after 15 weeks of pregnancy, and those pushing for even more restrictive laws that would ban abortion after six weeks, like Texas’s devious vigilante enforcement statute.

But blue states governed by pro-choice lawmakers are not being idle either. According to the Guttmacher Institute, 15 states plus the District of Columbia have enacted statutes that would protect abortion rights if Roe is reversed: California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. Some have gone further than simply trying to keep abortion legal in their own jurisdictions. Most notably, Governor Gavin Newsom has said that California will be a “sanctuary” for women unable to obtain an abortion in other states. California Democrats are advancing a package of bills to make that pledge a reality. It includes a ban on insurers imposing deductibles and co-pays for abortion services, legal protection for abortion providers who serve out-of-state patients, and money for community clinics offering reproductive health care.

Now Vermont is poised to take a step intended to insulate abortion rights from temporary political swings by placing reproductive rights in the state’s constitution. Last week, state lawmakers advanced a constitutional amendment that would guarantee the right to abortion and contraception, which would be the first such amendment in the United States. The Washington Post reports:

The Vermont House voted 107 to 41 for the proposed amendment, known as Proposition 5. It now heads to Gov. Phil Scott (R), who has signaled his support for the measure and is required to give public notice before it appears on the ballot in November. Voters in Vermont, where 70 percent of people say abortion should be legal in all or most cases, are expected to approve it.

Scott is one of three northeastern Republican governors who favor legalized abortion to one degree or another, a position that is rare among congressional Republicans (the other two, Maryland’s Larry Hogan and Massachusetts’s Charlie Baker, are not running for reelection this year, while Scott is considered a shoo-in).

The effort to protect reproductive rights at the state level is one reason many anti-abortion activists are already looking beyond the likely reversal of Roe. One option they’re looking at is federal legislation banning abortion (which is unlikely even if Republicans secure a governing trifecta, so long as the Senate filibuster exists). An even better route, from their perspective, would be a federal constitutional provision (a constitutional amendment or, more likely, a future Supreme Court decision) recognizing fetal “personhood,” a concept already embraced in every national Republican platform since 1980.

If the Supreme Court chooses to unleash the furies by overturning Roe this year, abortion politics is going to consume not just national politics but state governments for a long time.

The States Shoring Up Abortion Rights for the End of Roe