ALBANY, N.Y. — Wary that President Donald Trump’s administration could decisively change the balance of power on the Supreme Court against Roe v. Wade, Gov. Andrew Cuomo of New York has proposed a state constitutional amendment to protect abortion access.
“As they threaten this nation with a possible Supreme Court nominee that will reverse Roe v. Wade, I want them to know today: If that’s what they do, we’re going to protect Roe v. Wade in the state of New York,” the governor said in a Jan. 30 speech at an “I Stand With Planned Parenthood” rally.
“I propose today a constitutional amendment to write Roe v. Wade into the New York state Constitution,” continued Cuomo. “We’re going to protect a woman’s right to choose.”
Cuomo’s office at press time had not issued any further details on the proposed amendment.
The Trump administration has unsettled the prospects for legal abortion for the first time since the 1992 Planned Parenthood v. Casey decision. Proponents of abortion access have grown concerned about the future of Roe v. Wade, the 1973 Supreme Court case that declared the U.S. Constitution guaranteed a right to abortion, in a government unified under Republican control, as Trump nominates Judge Neil Gorsuch to the Supreme Court and possibly other pro-life justices.
Pro-life advocates, for the same reasons, look to the new administration to realize their hope of overturning Roe, which would move the fight over abortion back to the arena of state legislatures and courts.
Kathy Gallagher, director of pro-life activities at the New York Catholic Conference, told the Register Cuomo’s proposal was the latest in a 10-year attempt to make abortion a fundamental right in New York.
However, she said the constitutional amendment was an innovative approach compared with previous attempts. In New York, a constitutional amendment needs to be passed by two successive legislative sessions before being sent to voters for approval.
“We know we’re going to oppose it,” she said.
In Illinois, a Democratic lawmaker recently sponsored legislation to ensure continued abortion access in the state. The proposed statute would repeal a 1975 law that would take effect if Roe were overturned, under which abortion would be legal only if the mother’s life were threatened.
Alabama lawmakers, however, are moving their state in the opposite direction. H.B. 98, a constitutional amendment currently sitting in committee, would affirm the “sanctity of unborn life and the rights of unborn children, including the right to life” and declare that the Alabama Constitution “does not protect the right to abortion or require the funding of abortion.”
If approved by three-fifths of lawmakers, the amendment in Alabama would go to the ballot to be ratified by voters.
In recent years, some states have proposed constitutional amendments that aim to protect the unborn child from the moment of conception. But these measures have so far found little success with voters, being defeated in Colorado, Mississippi and North Dakota.
President Trump’s nomination of Judge Gorsuch is another strong indicator that he intends to fulfill promises he made on abortion during his campaign. In the third presidential debate, Trump said that Roe v. Wade would be overturned because of the pro-life justices he campaigned on appointing. In that event, he said, “[Abortion law] will go back to the states, and the states will then make a determination.”
While many look forward to Judge Gorsuch joining the Supreme Court, Trump would have to appoint more conservative justices before pro-life advocates could confidently expect the Supreme Court to overturn Roe v. Wade. Justices Ruth Bader Ginsberg, age 83, Stephen Breyer, age 78, and Anthony Kennedy, age 80, are the oldest members of the court, and thus the most likely to vacate their seats during a Trump administration.
But Clarke Forsythe, acting president and senior counsel for Americans United for Life (AUL), cautioned that the pro-life movement would see “very little change” the day after Roe v. Wade is overturned. “There aren’t abortion prohibitions on the books, except for a handful of states,” he said.
Paul Linton, an attorney and author of Abortion Under State Constitutions: A State-by-State Analysis, agreed.
“There’s a sense that since Roe made abortion legal everywhere, overruling Roe would make abortion illegal everywhere. That’s incorrect,” he told the Register.
Between eight and 11 states have laws that would ban most abortions if Roe were overturned, either through laws predating the Roe decision, as in Wisconsin, or through laws that go into effect when that decision is overturned, as in Louisiana. Only about 20% of the national population lives in states that would ban most abortions.
The remainder of the states would keep their current laws on abortion. In the case of New York, the state law legalizing abortion preceded Roe v. Wade by three years and would not be affected by Roe being overruled.
Linton told the Register that 11 states currently have a constitutional right to abortion, through decisions made by their respective state supreme courts. If Roe were to be overturned, these states would need a constitutional amendment to authorize the legislature to restrict or prohibit abortion. In 2014, Tennessee voters successfully passed a constitutional amendment to achieve that goal.
In a post-Roe environment, after one or two legislative sessions, “public policy would be better aligned with public opinion,” Forsythe said. While legislatures could in theory sweep away any restrictions on abortion, he predicted many of them would keep the current limits of 20-24 weeks.
“The majority of public opinion invariably supports those,” he said. A Knights of Columbus-sponsored Marist poll of American attitudes toward abortion published in 2017 showed 59% of respondents support banning abortion after 20 weeks. A November 2016 poll from Susan B. Anthony List found a similar result, with 64% of respondents supporting legislation that would prohibit abortions after 20 weeks.
According to the Guttmacher Institute, 926,200 abortions were performed in 2014. In 2013, 89% of abortions occurred in the first 12 weeks of an unborn child’s life. Only 1.2% of abortions occurred after 21 weeks.
A survey by the Pew Research Center found 57% of respondents believed abortion should be legal in most or all cases, while 39% believed it should be illegal in all or most cases. But much of the population supports restrictions on abortion. The 2017 Marist poll found that 22% of respondents thought abortion should be legal only during the first three months of a pregnancy, 30% thought abortion should be legal only in cases of rape, incest or to save the life of the mother, and 12% thought abortion should be legal only to save the mother’s life.
Changing the Culture
The states of California, Illinois and New York accounted for 319,560 abortions in 2014, approximately a third of the U.S. abortion total. With electorates that lean heavily progressive, there seems to be little prospect in the near future for laws prohibiting abortion in them and similar states, unless the pro-life movement can successfully change the underlying cultural values.
Leah Jacobson, CEO and founder of the Guiding Star Project, an organization establishing pro-life health centers nationwide, told the Register that, in some ways, overcoming the mindset of abortion is a bigger challenge than changing the laws regarding it.
“[As a country] we have bought hook, line and sinker the Planned Parenthood view of women’s health,” Jacobson told the Register.
The path to changing social attitudes, she said, starts with a grassroots argument against abortion framed as a health issue for women. While moral or religious arguments against abortion have not found support in much of the population, Jacobson explained, appealing to women’s interest in their own health may give the pro-life movement the best traction. From there, medical professionals need to support women and spread the message of pro-life women’s health.
“People listen to, and follow, whatever is being put out by the medical community,” she said.
Jacobson said that having the pro-life movement provide health services, where doctors and medical professionals create whole-life relationships with women and encourage them to work with their bodies instead of suppressing them, is “absolutely key” to changing the cultural equation on abortion.
“That’s the only kind of health care that’s going to overcome a culture of death.”
Register correspondent Nicholas W. Smith writes from Rochester, New York.