After the Supreme Court allowed the strictest anti-abortion law in the nation to go into effect in Texas on Wednesday, abortion rights supporters around the country were bracing themselves for the reality that their states could be next.
“My mental state is that today is the first day of living in a post-Roe world,” said Tarina Keene, executive director of NARAL Pro-Choice Virginia. “We’re just waiting for the next shoe to drop.”
Texas now bans abortion as early as six weeks into pregnancy, even though many women don’t yet know they’re pregnant at that point. The state also deputizes and incentivizes private citizens ― even those who don’t live in Texas ― to sue individuals who are “aiding or abetting” an abortion. That could be a doctor, a driver who dropped the woman off at the clinic, or a helpful friend.
The Supreme Court did not rule on the merits, but in a 5-4 decision, a conservative majority refused to stop the law even temporarily.
The Texas law is already sending shockwaves around the country, with abortion rights supporters anticipating a surge of copycat laws and other attempts by anti-abortion legislators to push forward what they can.
“This is rocket fuel in their engine,” said Kellie Copeland, executive director of NARAL Pro-Choice Ohio.
“They will continue to be as creative as possible to push their devastating and ideological and controlling agenda,” added Mallory Schwarz, executive director of NARAL Pro-Choice Missouri.
GOP legislators in Florida and Arkansas are already working on their own Texas-style bills, but no one expects the movement to stop there. Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights, identified 24 states to watch that are hostile to abortion. A handful of them ― including Georgia, Mississippi, Ohio and Kentucky ― have also passed six-week bans, although Texas’ is the first one to go into effect.
“I think the first set of states to look at would be those states,” she said.
Their goal is to outlaw all abortions for every reason for everyone everywhere.
Kellie Copeland, executive director of NARAL Pro-Choice Ohio
“State legislators and state policy has never been more important, and I think that’s a departure for a lot of us,” said Jack Teter, regional director of government affairs for Planned Parenthood Rocky Mountains. “Marginalized folks have not been able to count on the government or the courts to protect them.”
He noted that historically, states would pass laws that infringe on civil rights, such as restricting marriage equality or the right to vote. But then they move up to the Supreme Court, which sometimes ― but not always ― strikes them down.
“That’s not the case anymore. We can’t count on the court to protect us like that anymore, so state legislatures and state policy have never been more important,” Teter said.
The legislative action won’t come immediately. Most state legislatures are in recess until the new year, although some do meet year-round such as in Ohio, which saw its first six-week ban introduced 10 years ago.
Copeland says she expects legislators there to try to pass a so-called trigger law, which automatically bans all, or nearly all, abortions if the Supreme Court overturns Roe v. Wade, as it could do in 2022. Eleven states currently have those laws.
“Their goal is to outlaw all abortions for every reason for everyone everywhere,” she said. “And they just got a strong signal from the Supreme Court that they would be sympathetic to that.”
Every state-level abortion advocate HuffPost spoke with Wednesday said they expect to see conservative legislators empowered in the next legislative session and believe abortion will be a top issue.
Jenny Black, president and CEO of Planned Parenthood South Atlantic (which includes North Carolina, South Carolina, Virginia and West Virginia), said her region regularly passes laws identical to those in other states that restrict abortion.
“We have no reason to believe this will be different,” she said. “In West Virginia, for example, state lawmakers have already publicly indicated their intent to pass the same kind of abortion ban. In South Carolina, state lawmakers are trying right now to pass a six-week ban. It is not a stretch to imagine they will jump at the chance to pass a Texas-style bounty law here.”
As of 2014, Tennessee’s constitution no longer protects the right to an abortion, and last year Gov. Bill Lee (R) signed a six-week abortion ban that federal courts have so far blocked from taking effect.
“Texas lawmakers found the loophole that could make dismantling Roe v. Wade and the constitutional right to abortion a reality. Without Roe v. Wade, there is no protection for abortion in Tennessee,” said Ashley Coffield, president and CEO of Planned Parenthood of Tennessee and North Mississippi.
Texas’ law was deliberately written to be difficult to challenge legally. It doesn’t criminalize abortion; state officials are not allowed to enforce it. Rather, it provides incentives for private citizens to go after other private citizens. The idea is that doctors will be too scared by the threat of lawsuits to ever perform abortions.
Abortion bans in Oklahoma, Arkansas and other bordering states would further isolate Texas patients who need abortions and force women across the South to look for care several states away. Oklahoma, for example, is already seeing a rise in patients from Texas, as well as an uptick in inquiries about how to access abortion when traveling there.
“Patients are in crisis and trying to figure out their next steps to get care,” said Emily Wales, CEO of Planned Parenthood Great Plains.
Teter said that when Texas restricted abortion earlier in the COVID-19 pandemic by deeming it an “elective procedure,” the number of Texans seeking abortion care in his region skyrocketed with a “1,200% increase.” And that number included only the patients who could afford such a journey.
The Texas law’s model could also have ramifications far beyond abortion, pro-choice advocates warned.
“You could see that translate into all kinds of other social issues, like gun control, LGBTQ rights. The list is very long, and I think this sets a really, really dangerous precedent, not only for the right to abortion, but for this idea that as long as the government isn’t directly and explicitly enforcing something that’s unconstitutional, that you can just deputize and really incentivize your neighbors to do so. That’s a really slippery slope,” said Amanda Allen, senior counsel and director of The Lawyering Project.
Smith noted that gun owners could also find themselves unhappy with the precedent set by the Texas law.
“People who support gun rights, for instance, certainly don’t want to be dragged to court and sued by someone who opposes gun rights. There are two sides to this,” she said.
Abortion is expected to play a prominent role in upcoming elections. Virginia voters head to the polls on Nov. 2 for state elections. Democrat Terry McAuliffe, the state’s former governor who is running for his old job again, is an outspoken supporter of abortion rights. But Republican Glenn Youngkin is having a tougher time with the issue, trying to keep his conservative base happy but also needing to reach the influential bloc of independent voters in the state.
In July, Youngkin was caught on video saying that he had to avoid talking too much about abortion in order to win over more moderate voters but that he would go “on offense” if elected. On Thursday, he refused to say whether he would sign a Texas-style bill.
Keene said she was “concerned” about this election season. Without Trump on the ballot, and with people exhausted from the pandemic, she worries that Virginia voters may not feel the urgency to turn out.
“But I have a good feeling that people are about to wake up, because this is going to smack them in the face. And they’re going to realize, ‘You know what? I can’t just sit by and let this happen,’” she said.
Schwarz also said groups working to provide abortion access on the ground in the states need more support ― not just when there’s an emergency.
“When local groups raise these issues, they need to be listened to the first time,” she said. “The support Texas has gotten this week has been critical, but we need this level of support around the clock ― not just at these firestorm moments.”
There’s some sliver of hope that Congress could do something to combat the wave of abortion restrictions, but it seems unlikely. House Speaker Nancy Pelosi (D-Calif.) announced Thursday that Democrats will vote on the Women’s Health Protection Act, a bill that would enshrine abortion rights into federal law.
While the measure could pass the House, it likely wouldn’t pass the Senate, where Democrats don’t have the votes needed to overcome a filibuster. They could eliminate the filibuster, but they don’t currently appear to have the votes to do that either. Democrats could also attempt to expand the Supreme Court to make it less skewed toward conservatives.
President Joe Biden vowed to launch “a whole-of-government effort” to address the Supreme Court’s ruling on Texas, but he didn’t mention anything about the filibuster or expanding the court.
“Congress has to step up,” Teter said. “We’ll see if congressional Democrats are able to have the fortitude to get in line.”
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