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Blue States Are Finally Worried About Abortion — And They're Doing Something About It

While conservative legislators have spent the year passing abortion restrictions, progressive legislators are moving to protect the right.

by Carter Sherman
Jul 1 2019, 5:07pm

Missouri could become the only state in the country without an abortion provider this summer, if a state agency agrees to uphold a decision to strip Planned Parenthood of St. Louis of its license to provide abortions.

But just 20 minutes and one state line away lies another abortion clinic, one that’s free to operate because it exists in a parallel universe where abortion is far less regulated — a universe called Illinois.

"Today, we proudly proclaim that in this state, we trust women."

Weeks after Missouri passed a law that could ban abortion as early as eight weeks into a pregnancy, Illinois Gov. J.B. Pritzker signed a landmark bill declaring that his state's residents have a “fundamental right” to abortion. The bill also repeals two old, unenforced pieces of legislation that criminalized the procedure and could have limited access if Roe v. Wade, the 1973 Supreme Court case that legalized abortion nationwide, were overturned.

"Today, we proudly proclaim that in this state, we trust women," Pritzker said at the signing.

Read more: Abortion groups are raising record amounts since Alabama's ban.

Illinois isn’t only state taking a stand for abortion rights: While conservative legislators have spent the year passing some of the most ambitious abortion restrictions seen in the United States in decades, legislators in blue jurisdictions are moving aggressively in the opposite direction. And sometimes, the tactics they’ve adopted are unprecedented in U.S. history.

So far in 2019, at least 24 states have introduced 97 bills to strengthen access to abortion, including repealing old laws that could have limited access in a post-Roe United States, according to the Guttmacher Institute, which tracks legislation related to abortion. Six states have successfully enacted 29 abortion rights-supporting measures.

In 2018, by contrast, just three states enacted five similar provisions.

“The fact is that abortion rights and abortion access actually start and end in the states,” said Andrea Miller, president of the National Institute for Reproductive Health. “They always have, always will.”

Read more: The Trump administration is threatening teens' access to birth control.

Legislators started reconsidering their states’ abortion laws as soon as President Donald Trump nominated Brett Kavanaugh to the Supreme Court, since a Justice Kavanaugh would cement the court’s 5-4 conservative majority and make it at least plausible that the high court would overturn Roe.

Only a few weeks after his nomination, Massachusetts repealed a centuries-old law criminalizing abortion that was not being enforced. Its Legislature also debated last month whether to legalize some abortions after 24 weeks of pregnancy.

“There is a great deal of anxiety about women’s right to health care.”

“Because of this fear of what’s going to happen to Roe, a lot of blue-state legislators are sort of going back to their statute books and realizing that there are some laws on the books that they don’t like when it comes to abortion,” said Mary Ziegler, a professor at Florida State University College of Law who’s written two books on abortion law. “Before, I don’t think they really ever worried about it as much because nothing was gonna happen. Roe was sort of there as the floor.”

The Guttmacher Institute found that eight states so far this year have introduced measures intended to affirm abortion as a right — a move that would, essentially, codify Roe into state law, regardless of the status of the landmark Supreme Court decision. So far, they’ve passed in four states, including Illinois, New York, and Vermont.

“In Washington and, frankly, throughout the country and many other states, there is a great deal of anxiety about women’s right to health care,” Rhode Island Gov. Gina Raimondo told reporters as she signed her state’s version of the measure within hours of its passage in the state Senate. But the new law, she said, “preserves the status quo that has existed here in this state for 50 years.”

With its Democrat-controlled legislature, Rhode Island isn’t likely to ban abortion if Roe is overturned. Neither are any of the other states that have passed similar measures. Still, these laws have one crucial side effect: By declaring abortion a “fundamental right,” sometimes to great fanfare, liberal states are declaring themselves open for business for people who live beyond their borders.

Pointing to the example of Missouri and Illinois, Ziegler said the latter’s new law “would have a pretty powerful signalling effect, because women in Missouri who would have heard of this would know that they would be able to travel to Illinois to get an abortion.”

But living in a state that’s friendly to abortion rights is no guarantee that the procedure is accessible, even now. Thanks to the Hyde Amendment, federal funding cannot be used to pay for abortions except in the case of rape or incest, or when the mother’s life is threatened. Thirty-four states and Washington, D.C. have patterned their state-level Medicaid programs after that standard, allowing them to cover abortions in similar circumstances.

“We already have an unbelievable patchwork, in terms of where abortion care is available accessible,” Miller said. “It already does make an impact what your zip code is, not to mention if you have financial resources, where you live, if you’re in a rural community or an urban community, if you’re a woman of color, a low-income woman, a young woman. That already exists, and what we’re seeing now is an acceleration of that patchwork.”

Several states are now trying to change that. In early June, for example, Maine’s first female governor, Janet Mills, signed a law requiring state-level public and private insurance plans to cover abortion services, if they cover prenatal care. Miller also signed a law to let nurse practitioners and physicians’ assistants to perform the procedure.

Earlier this month, in what’s believed to be a first-of-its-kind measure for an American city, New York City announced that it will allocate $250,000 to the New York Abortion Access Fund. The move is expected to help about 500 low-income women pay for the procedure. Out-of-state women can also use the money, once they make it to New York.

New Yorkers who wanted abortions have long struggled to secure the money to get them, explained Miller, whose organization advocated for the contribution. Then the proposed near-total abortion bans in the South were signed into law.

“That added more urgency to our local initiatives, and wanting to identify and have New York City not only do something that will do something for anyone seeking care here, but will send a message across the country to what kinds of things cities can do and counties can do to step up,” Miller said.

To be sure, in the abortion arms race, foes of the procedure are still far and away in the lead: at least 44 states have introduced 419 provisions restricting abortion in 2019, according to the Guttmacher Institute. If Roe is overturned, abortion could be outlawed in as many as 22 states, the Center for Reproductive Rights estimated earlier this year. (It would also be “at risk of loss” in another 8 states, including Washington, D.C.)

In that event, not every state would immediately dive to one side of the war. Some swing states, like Florida, are likely to maintain abortion access but regulate it sharply, Ziegler predicted. And Elizabeth Nash, senior state issues manager for the pro-abortion rights Guttmacher Institute, saw some hope in the fact that bills to loosen abortion restrictions have been proposed this year in Republican-controlled legislatures — including in Missouri.

“With more attention nationwide, potentially they can at least get some support in those legislatures, where they haven’t gotten much support at all,” Nash said. “They’re trying to change the conversation. This is the first step to those legislatures looking at abortion in a different way.”

Cover: In this May 23, 2019, photo, abortion-rights supporters hold signs and yell toward the restaurant where a fundraiser was being held for the Rhode Island Senate Democrats political action committee in Providence, R.I. Protesters gathered at the fundraiser to pressure legislative leaders to bring a bill seeking to protect abortion rights to the Senate floor for a vote. (AP Photo/Jennifer McDermott)