Democrats are preparing to serve millions who could soon be living in states with abortion bans.
Blue states have been preparing for months for the possibility that the US Supreme Court will overturn Roe v. Wade this summer. There have been plenty of signals, even before a recent leaked opinion, that showed the Court is prepared to hand down a ruling in favor of anti-abortion advocates in Dobbs v. Jackson Women’s Health Organization.
So far in 2022, at least nine Democrat-controlled legislatures have passed legislation affirming that abortion is a legal right, protecting those who seek abortions and perform them, and expanding access to the procedure, sometimes using considerable public funding.
Republican-led legislatures in Texas, Idaho, and Oklahoma have already enacted laws prohibiting abortions after fetal cardiac activity is detected, which is typically around six weeks of pregnancy and before many even know they are pregnant. That’s creating more demand for care in neighboring states where women can travel to get abortions. Some of those picking up the slack now won’t be able to much longer: Louisiana, for example, borders Texas and is one of at least 13 states that have enacted “trigger laws,” meaning the clinics there will be shuttered if Roe is overturned.
Nothing blue states do will be able to make up for critical gaps in abortion access that already exist, and that will only deepen if the Supreme Court does actually overturn Roe as outlined in the draft opinion leaked to Politico. There’s no threat in the near future to states that want to preserve abortion rights in the case currently before the court. (That’s not to say abortion opponents won’t push for a nationwide abortion ban in the longer term). But blue states are doing what they can to ensure access to abortion for their own residents, and gird for the potential influx of patients from states where people won’t be able to get abortions if Roe is overturned.
“They’re about to have to shore up access for 26 other states. It’s an impossible burden to put on these states that believe in a woman’s right to choose,” former Democratic Texas state Sen. Wendy Davis, a longtime abortion rights advocate, told Vox. “It’s going to require a cohesive national effort to try to fill that gap, understanding that it’s never going to completely fill the gap.”
Here’s what those efforts look like.
Codifying abortion rights in state law
Anticipating the absence of a federally protected right to an abortion, some states have passed their own laws codifying Roe and abortion rights in state law. States including Illinois, New York, Rhode Island, Vermont, and Massachusetts have had those laws on the books for years. New Jersey, Colorado, and Connecticut enacted measures earlier this year, and it looks like California will soon join them.
Other measures to protect abortion rights have passed at least one chamber in several states, but actually enacting them may be difficult. In Washington, for instance, abortion rights are protected under the law, and lawmakers have considered an amendment that would enshrine abortion rights in the state constitution. But Democrats don’t have a supermajority in either chamber of the state legislature, and it requires a two-thirds majority to put an amendment on the ballot.
Democrats are also working to ensure that laws restricting abortions that were on the books before the Supreme Court decided Roe in 1973 will not be enforced going forward.
One such Michigan law, enacted in 1931, criminalizes abortion without exceptions for rape or incest. Gov. Gretchen Whitmer, a Democrat, has acknowledged that the GOP-controlled state legislature isn’t likely to overturn it, so she asked the Michigan Supreme Court last month to strike it down and affirm that the state constitution includes the right to access an abortion.
“The due process clause of the Michigan Constitution protects the right to abortion in the same way that the United States Constitution does per Roe, and the equal protection clause prohibits the state from adopting laws based on paternalistic justifications and overbroad generalizations about the role of women in the work force and at home,” Whitmer wrote Monday in the New York Times.
Wisconsin Attorney General Josh Kaul has also said that he will not enforce a state law passed in 1849 that makes abortion a felony with penalties of up to six years in prison and a fine of up to $10,000. However, it’s possible that local officials could still choose to enforce the law, likely prompting legal challenges.
Protecting people who receive and administer abortions
While Roe still stands, Republicans have generally been cautious not to penalize people for receiving abortions. Even the strictest anti-abortion laws currently being enforced, including Texas-style “heartbeat” laws, typically only target people who perform or assist in abortions and explicitly exempt patients from any liability. Some states have also explicitly exempted people who receive abortions from criminal homicide charges. But there’s no guarantee that won’t change if Roe is overturned, so Democratic legislatures in several states are working to give pregnant people additional protections.
At least six states have introduced legislation that protects people who self-induce an abortion, primarily by means of FDA-approved pills. Washington, DC, already barred prosecution for self-induced abortion in 2020. The state of Washington also recently passed a law that prohibits the state from criminalizing pregnancy outcomes starting in June. Maryland Gov. Larry Hogan, a Republican, vetoed a similar measure, and other such bills in Minnesota and Michigan aren’t likely to move forward.
Criminalizing pregnancy outcomes, including abortion, can have far-reaching consequences. Even after Roe was decided, at least 1,200 women have been arrested and prosecuted for miscarriage, stillbirth, or attempting to end their own pregnancy. Pregnancy outcomes have been criminalized through fetal assault laws (which can be enforced at any stage of pregnancy in 29 states), policies that penalize pregnant people for substance use, and legal attempts to force pregnant people to undergo medical treatment to benefit a fetus. Expanding criminalization would disproportionately affect Black and working-class women and have collateral consequences not just for the pregnant person but also, in many cases, their existing children.
Democrats have also sought to protect people who perform or aid in abortions. At least eight states have introduced bills to protect abortion clinics from violence, though Maine is the only one to enact such legislation. Effective in July, the state will establish an eight-foot buffer zone around health facility entrances, including abortion clinics, to prevent anti-abortion protesters from blocking the entrance or harassing patients or staff.
Expanding access to abortion
Even in the most progressive states, there are still gaps in abortion accessibility, as a California state government report outlined in December. Ramping up access quickly will be critical as blue states take steps to become havens for out-of-state abortion patients.
Sixteen states already fund abortions through state Medicaid programs, since federal law doesn’t allow the use of federal funds for abortion except in cases of rape, incest, or when the pregnant person’s life is endangered.
Earlier this year, Maryland also removed some administrative barriers to Medicaid coverage of abortion, and Oregon allocated $15 million to its state and local health departments for abortion services. New York and California joined Maryland in enacting legislation to expand abortion coverage through private health plans. But those measures expanding Medicaid and private insurance coverage of abortions won’t help out-of-state patients.
Some states have also been working to expand access to abortion training and broaden the categories of medical professionals who can perform abortions. Effective in June, Washington will allow physician assistants, advanced-practice nurses, and other health clinicians to perform abortions. Maryland will also establish a training program for abortion clinicians with $3.5 million in annual funding starting in July.
There are pending proposals in four states to expand access to medication abortion — the method used in about half of US abortions and that has become preferred during the pandemic — but none have passed yet. They could be critical in helping abortion clinics increase their capacity quickly since women would not necessarily have to go to a clinic to be prescribed the pills, which are a combination of mifepristone and misoprostol and authorized for the first 10 weeks of pregnancy.
Still, those measures can’t make up for abortion clinics suddenly going offline across half of the US if Roe is overturned.
“You have 36 million women of reproductive age who would be living in a state without abortion access,” said Elizabeth Nash, a state policy expert at the Guttmacher Institute, an abortion rights advocacy organization. “And you can’t imagine that the states that are protecting abortion access will be able to meet that need.”