Series: Post-Roe America
Abortion Access Divides the Nation
For 50 years, Roe v. Wade shut down the biggest ambitions of the anti-abortion movement. Last summer, the Supreme Court overturned that decision, unleashing a flurry of abortion legislation across the nation. And anti-abortion advocates have eager partners in Republican-controlled legislatures across the country.
“It’s exciting because our hands have been untied,” Carol Tobias, president of National Right to Life, said. “We’re going to see what we can do and do it.”
The new legal landscape has also energized blue states, shaking them out of their longstanding confidence that federal protections for abortion were unmovable.
Dueling efforts to protect and restrict abortion, divided along political lines, are making what was already a patchwork of access across the country even more pronounced.
“We’re going to see a bigger shift to the edges,” said Elisabeth Smith, a director with the Center for Reproductive Rights.
ProPublica reviewed proposals across the nation to see what trends are developing as state lawmakers began the first full legislative sessions since the Dobbs v. Jackson Women’s Health ruling in June.
Going Beyond Abortion Bans
States that already outlawed abortion are looking to further limit access by introducing novel ways to hinder people from evading such bans. Twelve states currently enforce abortion bans in almost all circumstances, in most cases through trigger laws, which were passed while abortion was protected by the court but went into effect after Roe was overturned.
“The next step is: Who’s helping people getting abortions and how do you regulate those organizations?” said Elizabeth Nash of the Guttmacher Institute, a global research group that advocates for abortion access.
Lawmakers in some states are either moving in some fashion to block residents’ access to abortion medication — a two-drug combination approved by the Food and Drug Administration to be taken in the first 70 days of pregnancy — or considering measures that target companies and local governments that protect abortion access.
In Texas, a lawmaker has introduced a bill to deny tax breaks to businesses that help pay for employees to leave the state for care. Tennessee, which has one of the strictest bans in the country, is considering a bill that would prohibit local governments from providing financial and health benefits to their employees who seek abortions. And in Idaho, a proposed law would withhold tax dollars from municipal governments that refuse to enforce state abortion laws.
Katie Glenn, the state policy director for Susan B. Anthony Pro-Life America, said that controlling distribution of abortion medication at the state level is a top priority. Georgia, for example, she said, is one of the only states in the deep South that doesn’t explicitly prohibit telemedicine, which pregnant people can use to obtain abortion medication from out of state. Glenn said she is expecting the state’s legislature to introduce a bill outlawing at least some aspects of telehealth soon. Georgia bans abortion after around six weeks.
In Wyoming, where a near-total abortion ban is being blocked by the courts, the state is considering legislation that would outlaw medication abortions unless the pregnancy was a result of rape or incest or the abortion was necessary to save the pregnant person’s life. But the legislation explicitly says that mental health conditions and the risk of suicide can’t be used as a reason to allow a medication abortion.
Republican lawmakers are also brainstorming ways to prevent abortion pills from being mailed into their states.
In Texas, which has long tested the limits of state regulation and already has a near-total ban, lawmakers are looking to target other realms of reproductive health. They’re debating a bill that would allow pharmacists to refuse to dispense not just abortion medication but also emergency contraception, which helps prevent conception after unprotected sex.
Republican-Controlled Legislatures Look to Amp Up Restrictions
The aim is to pass increasingly restrictive laws until the goal of ending abortions nationwide is reached, anti-abortion advocates said.
In Nebraska, for example, a total ban was defeated by a Democratic filibuster last year, so the focus is now on a newly introduced bill that would ban abortions once cardiac activity can be identified in an embryo, at around the sixth week of pregnancy. Many people don’t yet know they are pregnant at that time.
“That’s where they’ve found the political will to be,” Glenn, with SBA Pro-Life America, said. “That certainly would be a great step forward, in our estimation.”
Advocates on both sides are closely watching Florida. Despite previously passing a 15-week ban last session, Republicans, who have a supermajority, have vowed to enact an even earlier cutoff. In the South, where many states have total or bans that start around six weeks, Florida currently offers critical abortion access. The state has more than 50 clinics, which often see out-of-state patients, so any change to Florida’s laws has an outsized impact across the region, said Nash, of the Guttmacher Institute.
In Kansas, where voters last year rejected a ballot initiative that would have amended the state constitution to say there was no right to abortion in the state, the Republican-controlled legislature is planning to limit access anyway. GOP lawmakers announced they will look to pass more abortion restrictions and increase funding to crisis pregnancy centers, which often aim to prevent people from getting abortions.
State Courts Take the Reins
Ultimate constitutional oversight of abortion law has moved from the U.S. Supreme Court to 50 state courts that are newly interpreting what rights are protected by state constitutions. South Carolina’s highest court, for example, recently struck down a six-week ban for violating the state constitution, but was ambiguous about whether a ban at a later stage of pregnancy would be constitutional. The same day, the Idaho Supreme Court ruled the opposite way: Its state constitution did not protect abortion, allowing a near-total ban to go into effect.
Georgia bans abortion after around six weeks, but the law’s constitutionality is being challenged and the issue will likely be heard by the state’s highest court this spring. Several states, including Utah, Indiana and Wyoming, passed bans that are currently blocked by the courts as part of ongoing litigation.
Without the Roe precedent, the guardrails are gone, Nash said. “You don’t have federal protections, and it’s unclear what state constitutional protections are,” she said. “I think we’re going to see a lot of experimentation in this period.”
Some states frustrated by judicial intervention on abortion restrictions are moving to limit the authority of state courts. In Utah, for example, Republicans are looking to restrict the power of judges to grant injunctions. Utah passed a trigger law in 2020 to ban abortion, but after Roe was overturned, a judge blocked the ban from going into effect while a lawsuit challenged its constitutionality.
Contemplating What Was Once Taboo
A common refrain of many anti-abortion advocates has always been that should Roe be overturned, they wouldn’t try to punish people who obtained abortions. They claimed the liability should fall on the provider. Recently, however, some officials have put proposals criminalizing abortion-seekers on the table.
Last month in Alabama, where abortion is banned but the law doesn’t allow prosecuting the patient, the attorney general said that he’d use the state’s chemical endangerment law to go after people who took abortion medication. The law is intended to protect children from drug manufacturing operations, such as meth houses, and the state has used it aggressively to punish pregnant people, as ProPublica reported. The attorney general later walked back his comments.
But he’s not alone in his instinct to punish patients: Lawmakers in Oklahoma and Arkansas have proposed removing language from each state’s abortion ban that prohibits prosecuting people for obtaining abortions.
In May of last year, more than 70 anti-abortion organizations signed a letter denouncing any effort to hold a woman criminally liable for obtaining an abortion. They stated that in their view, patients in such situations are victims.
Medication abortion is a gray area. Advocates have been largely mum on whether private individuals, such as a family member or a teacher, should be targeted forhelping someone obtain the medicine. Glenn said SBA Pro-Life America is focused on those who make and sell the medication, but she did allow that some areas of enforcement will require prosecutorial discretion.
Blue States Shore Up Protections
For those who support abortion rights, the last six months have been disheartening as abortion became unavailable in 14 states, including two that have no clinics providing the procedure. But one bright spot is that there’s a “nationwide conversation about abortion like never before,” Smith, of the Center for Reproductive Rights, said.
A majority of Americans support legal abortion, but prior to the Dobbs decision, Smith said, many didn’t think it was possible for Roe to be overturned and were complacent. Now the country is hearing more from parties who previously stayed out of the political fray, such as doctors.
“I think doctors who provide care but never saw themselves as abortion advocates realized they had an important story to tell,” Smith said.
The amplification of the issue is galvanizing states where abortion is still accessible but there are barriers to care, such as a waiting period, according to Angela Vasquez-Giroux, with NARAL Pro Choice America.
“There’s more awareness. More willingness to hear about it,” she said, adding that abortion rights advocates are now finding willing partners to dismantle those laws.
And in some states that abortion-rights advocates might have given up as lost causes a year ago, the midterm elections have thrown those calculations out, Vasquez-Giroux said. In Kentucky and Kansas, voters soundly rejected changes to each state’s constitution saying there was no right to abortion. And now advocates have seen that those people who show up in opinion polls as supporting abortion rights are willing to also vote, even in solidly red states.
States that have maintained access to abortion and are controlled by Democrats are rushing to enshrine abortion rights in their states.
Minnesota, where the highest court had already ruled that the state constitution protects the right to abortion, has fast tracked a bill to codify abortion rights into law. And though a judge last summer struck down several restrictions on abortion, including a 24-hour waiting period, Minnesota lawmakers say they intend to remove those laws from the books. After the fall of Roe, relying on court precedent felt more precarious, Minnesota Democrats said.
Other Democratically held states, such as California, New Mexico and Maine, are boosting protections for providers and for reproductive choice. Illinois has already passed a shield law taking immediate effect, which protects providers and patients from out-of-state legal action involving abortions.
California voted last year to amend its constitution to guarantee abortion as a right. The New York legislature just voted to put a similar constitutional amendment on the ballot next year, and Maryland is working on doing the same.
California, which sought to advance abortion access even before Roe fell by passing measures such as a mandate requiring college campuses to carry abortion medication, has a website that gathers the text of all its abortion-related laws to inspire lawmakers in other states.