Post-Roe Abortion Battles Might Be Looming

Though the landmark abortion precedent may be on its way out in the wake of Amy Coney Barrett’s confirmation, struggles at the federal and state level could undercut pro-life momentum.

A pro-life activist and a supporter of naming Judge Amy Coney Barrett as a Supreme Court Justice, holds a sign in front of the Supreme Court building in Washington, DC on October 26, 2020.
A pro-life activist and a supporter of naming Judge Amy Coney Barrett as a Supreme Court Justice, holds a sign in front of the Supreme Court building in Washington, DC on October 26, 2020. (photo: Roberto Schmidt / Getty Images)

Pro-life advocates and those promoting abortion access don’t often agree. But recently, they found cause for common ground.

Though Amy Coney Barrett didn’t say much about how’d she’d rule on a case involving Roe v. Wade during her recent confirmation hearings, both sides are convinced that the addition of the originalist Notre Dame law professor to the Supreme Court makes the longstanding abortion rights precedent the most vulnerable it’s been in its near 50-year history.

But even if the court were to overturn or at least significantly limit Roe, the political and legal battles that have surrounded abortion since 1973 wouldn’t end. Instead, the reversal of a recognized constitutional right to abortion would merely shift the struggle to new terrain, with new tactics and arsenals employed.

And while pro-life leaders are investing significant resources to meet the needs of more mothers and babies if Roe were overturned — a ruling that would immediately reduce annual abortions by 100,000, one estimate suggests — some emphasize that there will be a fierce struggle to maintain and take advantage of the legal ground gained by the pro-life movement, if the Supreme Court precedent does fall.

 

Federal Still Matters

Most post-Roe pro-life strategy is focused at the state level, where abortion’s legality would largely be determined on a state-by-state basis. In fact, over the past two years, a sort of arms race of abortion-related laws has been passed in several state legislatures. Abortion-friendly states have taken steps to protect access no matter what the Supreme Court does, while more moderate and conservative states have passed restrictions to regulate abortion in anticipation of a Roe-less future.

However, experts caution that federal policy and practice could still have significant influence on the accessibility of abortion in the states, depending upon who controls Congress and the White House following the general elections, regardless of who currently sits on the Supreme Court.

The most obvious possibility would be the addition of new justice positions to the Supreme Court through legislative action, a process known as “court packing” that has been advocated by many prominent Democrats in the context of Barrett’s confirmation. Although he has said he’s “not a fan” of the approach, Democratic presidential candidate Joe Biden said in the last presidential debate that court packing is a “live ball.” Court packing could effectively stop the Supreme Court from overturning Roe — or reverse its reversal — by saturating the bench with appointees of a Democrat president and Senate. The 78-year-old Biden’s running mate, California Sen. Kamala Harris, has previously expressed openness to packing the court.

But pro-life legal experts consulted for this story point to other possibilities at the federal level currently not generating much attention in media accounts of the post-Roe landscape. Steven Aden, chief legal officer for the pro-life advocacy group Americans United for Life, suggests a Biden administration could push for a version of the Freedom of Choice Act, previously proposed legislation that the U.S. Catholic Conference of Bishops has described as an effort to “codify” the precedent Roe v. Wade into law. In doing so, FOCA could make legal a form of abortion access without any basic medical safeguards or reporting requirements used to monitor the practice, as these were regulations that the Supreme Court only allowed states to put in place in the decade immediately following the original Roe ruling.

“I can’t even begin to tell you how disastrous that would be for women’s health if we truly went back to the regime of Roe, and the medical regulations of abortion were wiped off the books,” said Aden.

A pro-abortion rights White House could also use the regulatory power of the Justice Department to blunt state laws restricting abortion, a practice endorsed by Biden’s running mate.

Helen Alvaré, a legal scholar at George Mason University’s Scalia Law School, said the executive branch could also take steps such as making abortion a “mandatory element” in federal contracts, creating pressure at state levels to keep abortion regulations lax.

“There’s plenty of mischief for the feds left to do,” she said.

 

State Situations

At the state level, the nature of post-Roe battles will largely be determined by the political climate in each particular state. Pro-life legal experts like Aden and Alvaré group the 50 states into three general tiers.

The first tier includes 21 states and the District of Columbia where abortion is already protected in some way under local law. Overturning Roe will likely have little to no immediate effect on access to abortion in these states. In fact, some of them have taken measures recently to expand abortion rights. In New Jersey, for instance, Democrat Gov. Phil Murphy unveiled legislation to codify Roe v. Wade into law shortly after Barrett was nominated to the country.

The Catholic Bishops Conference in Maryland, one of these states with loose abortion regulations, says their focus will be on opposing further expansions of abortion access. For instance, a recent push to establish the right to privacy — which includes abortion — in the state constitution, could be galvanized by Barrett’s nomination and the possibility of Roe’s downfall.

But the conference won’t only be playing defense. Even in a difficult political environment for pro-life legislation, they’re looking to build off victories in areas like grants for maternal and pre-natal support and housing for domestic abuse victims, said Molly Sheehan, the Maryland Catholic Conference’s associate director for Respect Life Advocacy.

“If there are more bills that we can do to help moms so that they can carry and deliver and raise their babies, then why not?” she said, noting that the goal in Maryland is to help make abortion more “unthinkable” as an option.

Another tier of states is made of the so-called “trigger law” states. These 10 states, which Idaho and Utah joined this year, have already passed legislation where abortion will be banned in all or almost all cases the moment Roe falls.

South Dakota’s trigger law, for instance, has been on the books since 2005, and it would prohibit any kind of abortion, with an exception for when the mother’s life is at risk. South Dakota Catholic Conference Executive Director Christopher Motz says the state pro-life community’s focus in a post-Roe context would be “keeping a good law in place” in the face of potential efforts to weaken it, while also pushing for policies that will help meet some of the needs of women who give birth and their children, such as subsidies to offset the costs of adoption.

“We think children are a blessing,” said Motz of South Dakota, where abortion is already prohibited after 22 weeks and the abortion rate is the second lowest in the country. “We’re going to do what it takes to receive children with joy.”

Finally, there is a sizable “middle of the road” tier of states, where some abortion restrictions may already be in place or will go into effect if Roe is taken off the books, but where contentious battles will be fought to shape laws regulating abortion. Depending on the particular state, pro-life activists will be pushing for everything from policies that limit access to abortion like parental consent and ultrasound requirements to outright bans.

In Atlanta, Georgia Life Alliance says the pro-life movement is ready for the fight. A 2019 bill banning abortion after six weeks, when a fetal heartbeat is typically detectable, has been blocked by court order, but it would go into effect if Roe were eliminated.

“We are poised and ready for Roe to be overturned,” said Joshua Edmonds, GLA executive director, noting other policy goals, like paid parental leave and expanding healthcare options for low income pregnant women.

 

A Grueling Fight 

AUL’s Aden looks forward to Roe’s eventual demise and the question of abortion’s legal status returning to the states, “where it belongs … not with nine lawyers with robes on.”

However, he cautions that if Roe falls, state pro-life efforts may be facing a factor they’ve yet to go up against: the full attention of a well-funded, well-organized, and likely well-motivated national abortion rights advocacy movement. 

“The day after Roe is overturned, Planned Parenthood and the Center for Reproductive Rights will file lawsuits in dozen states trying to secure a state constitutional right to abortion,” AUL’s Aden told the Register. “That scenario is one I don’t think that the pro-life movement is ready for, and I’d like to see it become prepared for that, because that’s the next thing.”

Aden says that abortion advocates have already begun shifting legal challenges away from the federal court system and into state courts, where they believe they’ll have a better chance of being successful. He also cautions about the establishment of well-endowed groups dedicated to advancing abortion rights in a post-Roe context, such as the Tides Foundation.

Alvaré also has some concerns about the pro-life movement’s potential unpreparedness for the coming battle at the state level, which she attributes not to neglect but rather to the good fortunate the movement has had in the federal judiciary during President Donald Trump’s tenure.

“I don’t think anyone anticipated three Supreme Court justices newly coming onto the court in four years,” Alvaré said, referring to Justices Barret, Neil Gorsuch and Brett Kavanaugh, all appointed by Trump and all believed to have originalist views that make them likely to question the standing of Roe

Alvaré says that part of the pressure the state pro-life movement will face will come not only from abortion advocacy groups, but also the media.

“The press is very preoccupied with abortion,” she said, saying the situation could be like the 1990s when partial-birth abortion was a salient issue in the national conversation, and media giants coordinated pro-abortion messaging even in venues like Seventeen magazine. 

Alvaré urges pro-lifers to prepare to weather “a year or two long” public campaign, including rallies, get-out-the-vote efforts, and ballot initiatives attempting to expand abortion access.

This dynamic could create challenges even in solidly pro-life states. Motz says he expects abortion advocates to challenge South Dakota’s trigger laws by seeking a referendum to the state Constitution, a measure that requires a petition of only 10% of those who voted in the last gubernatorial election to get on the ballot. Because of the state’s relatively cheap media market, he thinks funds poured in from the progressive coasts could go a long way in shaping the discourse in ways inconsistent with South Dakota’s actual values.

Alvaré suggests state pro-life organizations need to “start fundraising now. Now, now, now.” She also encourages state organizations to collaborate with each other, and to depend on the experience and resources of national organizations.

Aden says AUL is eager to assist, and recommends pro-lifers review his organization’s annual publication Defending Life, which includes recommendations for what each state should be doing. He also hopes the increased likelihood of Roe being overturned or restrained will serve as a wake-up call to the importance of shifting attention to the states.

“There are a number of directions that the movement could go to continue to operate effectively in all 50 states,” he said. “And I am hopeful that the movement will continue in that direction.”

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