The national right to abortion may be extinct within weeks, and abortion opponents across the country are now rushing to prepare for its demise.
At least 525 abortion restrictions have coursed through state legislatures this year, according to Elizabeth Nash, who tracks abortion restrictions for the Guttmacher Institute. But over the last two weeks, a flurry of states have advanced bills that would not simply limit access to abortion; instead, they aim to outlaw the procedure.
These bills fly in the face of Roe v. Wade, the 1973 Supreme Court decision that legalized the procedure and is now in danger of collapsing. Without the landmark ruling, states would be free to regulate abortion.
“The goalposts have shifted from restrictions to bans, with the real potential for some of these bans to go into effect,” Nash said. “Right now, what we’re seeing is a lot of momentum around abortion bans because the expectation is that federal abortion rights will be overturned or substantially damaged.” In a normal year, Nash pays attention to the volume of abortion restrictions, but that metric is no longer her focus. Instead, she’s zeroed in on the 82 proposals to ban abortion at various points in pregnancy.
On Wednesday, Arizona’s governor signed into law a bill set to ban abortion after 15 weeks of pregnancy, just one day after Kentucky legislature passed a bill packed with abortion restrictions so onerous that, advocates say, abortion providers would be totally unable to keep offering the procedure. A 15-week ban was also tacked onto that Kentucky bill, with no exceptions for rape or incest. The Florida state legislature has also passed a 15-week abortion ban that is now awaiting the governor’s signature.
The sudden popularity of 15-week bans is no accident. Currently, states are blocked from outlawing abortion prior to fetal viability, a benchmark that typically occurs at around 24 weeks of pregnancy. But the Supreme Court is now weighing the constitutionality of a 15-week ban passed in Mississippi in 2018. The justices may explicitly overturn Roe itself, or just let the 15-week ban stand—which has the side effect of erasing the viability standard and effectively rendering Roe meaningless anyway.
“If it’s not viability, then what is it?” Mary Ziegler, a Florida State University College of Law professor who studies the legal history of reproduction, told VICE News last year.“It becomes a free-for-all.”
The states pushing 15-week bans are gambling that the Supreme Court will, at the very least, give the green light to such bans, according to Nash. At arguments in the case last year, the court’s 6-3 conservative majority seemed skeptical of pleas to preserve nationwide abortion rights.
“All signs are pointing to the Supreme Court substantially damaging abortion rights, but we don’t know exactly what will happen,” Nash said. “I think the 15-week bans are basically their back-up plan… This is their backup plan as they continue to push towards total bans in the states.”
Legislatures are also pursuing bans patterned after the infamous Texas ban, which not only outlaws abortion as early as six weeks into pregnancy but hands individuals the ability to sue others over abortions that break the bans. The Oklahoma state house has passed a bill that would not only let people sue over abortions, but ban almost all abortions. (The only acceptable abortions, under the law, would be those performed to save the life of “a pregnant woman” or if “the pregnancy is the result of rape, sexual assault, or incest that has been reported to law enforcement.”)
Last week, Idaho’s governor became the first in the nation to sign a Texas-style bill into law. And while the Idaho law has more limitations on who, exactly, can sue over an abortion, it also increases the cash that someone can grab for doing so: While Texas says that plaintiffs may be awarded no less than $10,000, Idaho has raised that bar to $20,000.
In a lawsuit filed Wednesday, Planned Parenthood called the law “blatantly unconstitutional.”
The ban “will put many pregnant people in Idaho to a difficult choice: carry the pregnancy to term, attempt to self-manage an abortion without access to accurate medical information, or undertake burdensome, time-consuming, and expensive travel to a different state,” the lawsuit reads. “Being forced to continue a pregnancy against one’s will jeopardizes a person’s physical, mental, and emotional health, as well as the stability and well-being of their family, including existing children.”
The lawsuit was filed with the Idaho state supreme court. It’s unclear whether federal courts would provide much relief for Planned Parenthood, given that the federal Supreme Court ruled to let the Texas ban remain in place.
As conservative states try to chop up abortion rights, Democrat-dominated states have spent March trying to enact bills that protect them. The Colorado state legislature passed a bill that calls the ability to get an abortion or use birth control a “fundamental right” and bars public entities from interfering with it. Oregon lawmakers have also agreed to provide $15 million to establish the so-called “Oregon Reproductive Equity Fund,” which will help people obtain abortions. And Washington state’s governor has signed into law a bill that blocks Texas-style lawsuits over abortions.
If Roe falls, all three states will likely handle a flood of abortion patients who can no longer get the procedure in their home state, according to a Guttmacher Institute analysis last year.
“They’re trying to figure out what needs to be put in place so that not only is abortion protected in statute, but is a reality for people. How are you helping abortion be accessible and affordable?” Nash said. “Even if the court completely overturns abortion rights, that won’t be the end of the story, because we will see states looking to push back against abortion bans.”