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Trump’s Supreme Court pick has states already preparing for the end of Roe v. Wade

Efforts are underway in at least five states to either protect or restrict abortion action if Roe v. Wade disappears.

by Carter Sherman
Jul 18 2018, 4:51pm

Massachusetts lawmakers must answer a question on Wednesday: Do you support NASTY Women?

Technically, they’re planning to vote whether to pass the “Act Negating Archaic Statutes Targeting Young Women” — colloquially known as the “NASTY Women” bill. The measure would amend a 19th century state law that criminalizes attempts to “procure the miscarriage of a woman,” or, in modern terms, abortion.

Legislators in Massachusetts haven’t had to worry too much about that law, since Roe v. Wade legalized abortion nationwide in 1973. But with Supreme Court Justice Anthony Kennedy retiring this month, and President Donald Trump tapping conservative Judge Brett Kavanaugh to fill his seat, they’re worried now.

Trump previously said he'd only nominate justices who would overturn Roe v. Wade, and Kavanaugh has the backing of anti-abortion groups. If the Supreme Court does one day overturn the landmark case, abortion wouldn’t immediately become illegal. Instead, each state would be able to decide whether to allow abortion and how to restrict its access. And both anti-abortion and pro-abortion rights advocates and politicians want to make sure they’re prepared.

In addition to Massachusetts, efforts are already underway in at least two states to legalize abortion. Another two states are currently pursuing ballot measures that would give state lawmakers greater latitude to restrict abortion access.

READ: Will Trump's Supreme Court pick overturn Roe v. Wade?

“Everything has taken on a new sense of urgency with the retirement announcement of Justice Kennedy,” said Elizabeth Nash, senior state issues manager for the Guttmacher Institute, a nonprofit that supports abortion rights. “Abortion opponents have been waiting and anticipating this for a couple of years, and now, they see this as their shot. On the other side, abortion rights voters are really looking hard to see where they have places to make positive change.”

President Donald Trump shakes hands with Judge Brett Kavanaugh his Supreme Court nominee, in the East Room of the White House, Monday, July 9, 2018, in Washington. (AP Photo/Alex Brandon)

Right now, nine states have laws on their books that would protect abortion access even if Roe disappears, according to the Guttmacher Institute. But not all lawmakers in traditionally blue states had the same foresight, and they’re scrambling to catch up.

Just two days after Justice Kennedy announced his retirement in June, for example, the New Mexico House’s Democratic Speaker Brian Egolf told the Albuquerque Journal that repealing the state’s abortion ban would be a priority when the state Legislature reconvenes next year.

Politicians across the country are echoing that sentiment: Democratic gubernatorial candidates in at least six states have started campaigning on the need to protect abortion access, Politico reported Tuesday. New York Gov. Andrew Cuomo also demanded last week that state lawmakers pass a bill enshrining abortion access in state law, a cause critics say he’s failed to substantively champion in past years. Cuomo’s primary opponent Cynthia Nixon has seized on that record and criticized Cuomo for placating anti-abortion Republicans in an attack ad.

In Massachusetts, the state Senate — which, like the state House, is dominated by Democrats — unanimously passed the NASTY Women Act in January. But the bill, which would also eliminate old laws criminalizing distributing birth control and barring single women from using contraception at all, has languished ever since.

David Franks, chairman of the board for Massachusetts Citizens for Life, called the bill “cynical political theater.” He believes only a state constitutional amendment could cut off abortion access. In 1981, the Massachusetts Supreme Judicial Court ruled that the state’s constitution protects the right to abortion; even if Roe v. Wade were to be overturned, Franks pointed out, that decision would stand.

“We really do think this is a sideshow, so our efforts won’t be to frontally attack this bill,” he explained.

Still, abortion rights advocates fear that overturning Roe could lead to a revival of Massachusetts’ 19th century law against abortion.

"What we don’t want to happen is to enter some kind of liminal period where there’s a question about the law, where a prosecutor could choose to try to arrest someone using the law."

“What we don’t want to happen is to enter some kind of liminal period where there’s a question about the law, where a prosecutor could choose to try to arrest someone using the law, and where women are confused about what their rights are in Massachusetts,” said Rebecca Hart Holder, executive director of NARAL Pro-Choice Massachusetts. “So we think it needs to be repealed, both as a symbolic matter as a statement of our values here in the Commonwealth and also to remove any latent ambiguity from the law.”

As in Massachusetts, both wings of the New Mexico state Legislature lean Democratic. But when Democratic state Rep. Joanne Ferrary introduced bills in both 2017 and 2018 to repeal the state’s pre-Roe abortion ban, neither version got much traction.

“It happens a lot where one law will be passed, and then people kind of forget to go back and take care of, clean up an old statute,” said Ferrary, who plans to reintroduce a similar measure next year. “There is this imminent threat.”

“The states will have to step up and do what they can, right away,” she added.

READ: How Kennedy's retirement will push the war over abortion into overdrive

Opponents of abortion are feeling the glare of the national spotlight, too. Four states have already figured how out how they’d deal with the potential disappearance of Roe v. Wade: Louisiana, Mississippi, North Dakota, and South Dakota all have so-called “trigger laws,” which will automatically ban abortion in the event that Roe is overturned, according to the Guttmacher Institute.

Currently, ballot measures in Alabama and West Virginia aim to strip abortion protections from each state constitution, giving lawmakers more leeway to regulate abortion if Roe v. Wade disappeared. Both proposed measures would amend the state’s constitution to explicitly proclaim that they do not protect the right to abortion.

“It neutralizes the constitution once again, and it says it goes back to saying that there’s nothing in this constitution that either allows for or prevents abortion,” Wanda Franz, the president of West Virginians for Life, the measure’s primary supporter, said of the West Virginia ballot measure.

Franz said that the ballot measure is about making sure taxpayer dollars don’t go toward abortions, not about legislating for a post-Roe future, and state legislators originally voted to put the question on the 2018 West Virginia ballot in March. Yet Kavanaugh’s nomination gives the proposal national importance.

“It drew more attention to the amendment, as though it had something to do with that,” Franz said.

Massachusetts House lawmakers must pass the NASTY Women Act by July 31, when Massachusetts adjourns its legislative session. Massachusetts Citizens for Life President Anne Fox is already looking past the bill — instead, she's preparing for what happens next.

"We’ve always known that if and when Roe v. Wade was overturned, that we would have to amend the constitution in Massachusetts, and it’s a huge, huge job," Fox said. "This isn’t like the beginning of the end. It’s the beginning of the beginning."

Cover image: Hillary Namba, of Seattle, holds a wire coat hanger and a sign that reads "We Won't Go Back," Tuesday, July 10, 2018, as she takes part in a protest in Seattle against President Donald Trump and his choice of federal appeals Judge Brett Kavanaugh as his second nominee to the Supreme Court. (AP Photo/Ted S. Warren)