Alabama and West Virginia no longer support the right to an abortion

They're among the states getting ready for a post-Roe future
November 8, 2018, 6:13pm
Alabama and West Virginia no longer support the right to an abortion

West Virginia and Alabama are getting ready for a future where abortion is no longer legal nationwide in the United States.

On Tuesday, voters in each state passed ballot measures that stripped the state’s constitution of protections for abortion. Those measures plan for a United States where Roe v. Wade, the 1973 Supreme Court decision that legalized abortion across the country, has been overturned and where states have more control over whether and how to regulate abortion access — including banning the procedure entirely.

With newly installed Justice Brett Kavanaugh weighting the Supreme Court toward conservatism, abortion rights advocates and anti-abortion activists alike say that future is closer than ever.

READ MORE: How to translate Brett Kavanaugh's language about abortion

“If Roe is overturned, unless the state has a state constitutional right to abortion, a state would have the prerogative to limit abortion as it sees appropriate for women’s health and safety or to protect unborn human life,” said Steve Aden, chief legal officer of Americans United For Life, which advocates for anti-abortion legislation. “The people have spoken in a very loud clear way about their desire to limit abortion rights in those states.”

Alabama’s ballot measure also made the deep-red state the first in the nation to enshrine what opponents call a fetal “personhood clause” in its constitution. Alabama will now recognize “the rights of unborn children, including the right to life,” according to the amendment, supported by almost 60 percent of voters.

Since no state has ever successfully enacted this kind of “personhood” language, the Guttmacher Institute’s Senior State Issues Manager Elizabeth Nash isn’t exactly sure what legal impact Alabama’s measure will have.

“That language has never been approved or implemented or anything like that,” Nash said. “There are concerns that that language would apply more broadly to something other than abortion, like perhaps actions by a pregnant person or miscarriage, or like somehow that could be applied to criminalize pregnancy in some way.”

Unless Roe is reversed, Alabama’s constitutional amendment will likely have little to no effect on the people living in the state. West Virginia’s ballot measure, on the other hand, not only amends the state constitution to affirm that it doesn’t protect a right to abortion but also prohibits Medicaid dollars from being used to cover abortion care in the state.

“That’s a very serious problem, because an abortion costs about $500. And then you have all the additional costs of travel and time off of work and child care,” Nash said. “It’s expensive.”

West Virginia’s anti-abortion measure passed more narrowly, with almost 52 percent of the vote.

Another anti-abortion ballot measure, in Oregon, did not pass Tuesday. That measure would have stopped public employees and Medicaid patients from receiving insurance coverage for abortion, and its defeat — by almost 30 percent — wasn’t exactly surprising, given that Oregon is one of the most liberal states in the country when it comes to abortion access. Just 16 states, including Oregon, even allow Medicaid to pay for medically necessary abortions, according to the Guttmacher Institute.

More than a third of voters did support the Oregon measure, though, as Aden pointed out.

“It’s interesting that so large of what I would call a plurality of voters in a very blue state would still consider that issue important enough to vote it up, even though the measure ultimately failed,” he said. When considered alongside the West Virginia and Alabama measures’ success, Aden added, “What it signals is that pro-life issues continue to have resonance with voters.”

Both West Virginia and Alabama still have pre- Roe abortion bans on the books, according to the Guttmacher Institute, as well as laws that delay people from having the procedure by at least a day. A total of 16 states have laws that could limit abortion access if Roe is overturned, though the pro-abortion rights Center for Reproductive Rights believes that, in that scenario, the right to abortion could be threatened in up to 22 states.

Cover: Protesters dressed as "Hand Maidens" line the hallway near the Judge Brett Kavanaugh nomination hearing to become the next Associate Supreme Court Justice. The protestors are concerned that Kavanaugh may try to overturn Roe v. Wade. September 4, 2018. Credit: Patsy Lynch/MediaPunch /IPX