'A crisis moment': States, advocates brace for new fight over abortion rights

By Chloe Atkins Originally published to NBC News on January 11, 2021

With reproductive rights in the spotlight after the confirmation of Supreme Court Justice Amy Coney Barrett last fall, conservative and liberal states are even more divided over abortion.

Across the South and the Midwest, Republican legislators have introduced laws that would limit abortions or try to ban them altogether in hope of undermining decades of precedent. At the same time, Democratic-led states are cementing abortion rights and making abortions more accessible.

Driving the burst of activity is the rightward shift of the Supreme Court, which has cast uncertainty on the future of Roe v. Wade, the landmark decision that established the legal right to abortions nationwide. Advocates on both sides said the conservative justices have more power to eliminate abortion rights or give states more leeway to regulate it.

"For abortion, it's really a crisis moment, and everything is on the line with a new Supreme Court," said Gretchen Borchelt, vice president of reproductive rights and health for the National Women's Law Center, a nonprofit women's rights group.

If Roe v. Wade were weakened or overturned, abortion would be protected in less than half of the states and none of the U.S. territories, according to the Center for Reproductive Rights.

Whether the court will roll back access to abortion remains unclear. However, Chief Justice John Roberts' concurring opinion in the case June Medical Services v. Russo inflamed the battle. While Roberts sided with the liberals in striking down the Louisiana law, which placed restrictions on doctors who provide abortions, he signaled that he could support other restrictions in future cases.

For decades, states have chipped away at abortion rights, deepening the growing divide in access between red and blue states and producing significant court battles. But now, energized by the political landscape, abortion rights opponents said they might be closer to their goal of undoing Roe v. Wade.

"There is renewed hope for pro-life state legislators that the handcuffs will soon be taken off of the states so they can enact policy that's consistent with values of the population," said Mallory Quigley, vice president of communications for the Susan B. Anthony List, an anti-abortion rights group. "We're going to do everything that we can to make some gains in the legislature."

Arkansas state Sen. Jason Rapert, a Republican who has supported anti-abortion rights measures in recent years, said Arkansas is prepared to pass legislation that directly challenges Roe v. Wade.

"We probably have the most conservative court that we have had in generations, and this is the best opportunity for the court to take another look at Roe v. Wade," Rapert said.

Rapert filed SB 6, which would ban nearly all abortion procedures in the state unless the woman's life was in danger or pregnancy was ectopic. It would not allow exceptions for rape or incest. Those who continued to provide abortion care could face fines of up to $100,000 or up to 10 years in prison.

In Texas, where Republicans control the Legislature and the governorship, lawmakers have filed a flurry of bills to prohibit access. One measure, HB 69, would outlaw abortion after 12 weeks of pregnancy except when the woman's life is at risk. Current state law prohibits abortions after 20 weeks.

Texas legislators are also considering a so-called trigger law, which would ban abortion if the Supreme Court were to overturn Roe v. Wade. At least 10 states have passed similar measures, including Arkansas, Kentucky and Louisiana.

"Folks are feeling emboldened," said Joe Pojman, executive director of the Texas Alliance for Life. "There is general optimism that something can get done, and the legislators want to show the world that they are pro-life."

Elsewhere, liberal lawmakers have taken steps to safeguard access, arguing that Barrett's appointment has put Roe v. Wade in jeopardy and warranted state-level action. At least 19 abortion-related cases are just a step away from the Supreme Court, according to the Planned Parenthood Action Fund.

"We know there is a 6-3 majority that does not support abortion rights, and we have reached the place where supporters are doing all they can to protect the right in the state where they live and work," said Elisabeth Smith, chief counsel for state policy and advocacy of the Center for Reproductive Rights.

New Jersey Gov. Phil Murphy, a Democrat, and state officials introduced the Reproductive Freedom Act, which would enshrine abortion rights into state law and require most private health insurers to cover services. The law would also let advanced practice clinicians provide procedural abortions and give people ineligible for Medicaid coverage because of their immigration status access to pregnancy-related care, including abortion.

"As the right to choose and access to health care are endangered by a more conservative U.S. Supreme Court, my administration will support, defend and protect reproductive rights here in New Jersey," Murphy said.

Similarly, legislators recently passed a measure to expand access to abortions in Massachusetts. Gov. Charlie Baker, a Republican, vetoed the measure, but the Senate and the House voted to override the veto.

The ROE Act codifies abortion rights and allows services after 24 weeks of pregnancy in the event of a lethal fetal diagnosis. The new law also lowers the age of consent for abortions from 18 to 16; it requires those under 16 to get parental consent or a judicial bypass. However, a patient seeking a judicial bypass can request a remote hearing instead of appear before a judge in person.

"As other state legislatures across the country pass medically unnecessary abortion restrictions, we have an opportunity in Massachusetts to protect and improve access to abortion across our Commonwealth," said Dr. Jennifer Childs-Roshak, president and CEO of the Planned Parenthood Advocacy Fund of Massachusetts.

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