States Push Both Pro-Life and Abortion Expansion Measures in 2021

With a Democrat-controlled Congress and presidency, the pro-life movement will likely focus more on state level legislation even as abortion lobbyists continue their own push to codify Roe v. Wade.

Supporters of Judge Amy Coney Barrett and pro-choice supporters gather outside of the US Supreme Court as the Senate is expected to confirm President Trump's Supreme Court nominee Amy Coney Barrett on Capitol Hill on October 26, 2020 in Washington, DC.
Supporters of Judge Amy Coney Barrett and pro-choice supporters gather outside of the US Supreme Court as the Senate is expected to confirm President Trump's Supreme Court nominee Amy Coney Barrett on Capitol Hill on October 26, 2020 in Washington, DC. (photo: Olivier Douliery / AFP/Getty)

WASHINGTON — With a new 6-3 conservative majority on the Supreme Court, state restrictions on abortion as well as extremely permissive abortion laws have been increasing as pro-life advocates attempt incremental challenges to Roe v. Wade and abortion activists attempt to enshrine abortion into state law. 

Additionally, with a Democrat-controlled Congress and presidency, the pro-life movement will likely increase focus on bills at the state level in 2021. 

A series of pro-life laws in some states have already been making their way through federal court and could potentially be taken up by the Supreme Court. At the same time, in blue states attempting to prevent future challenges to Roe v. Wade, extreme pro-abortion bills, permitting abortion up through birth and codifying Roe v. Wade, have passed and are being promoted.

A number of states have legislation to limit abortion making its way through the courts. In Arkansas, a measure to ban abortion after 18 weeks and another measure to ban abortion due to Down syndrome were once again put on hold by a judge on the Eighth Circuit Court of Appeals. And in November, State Sen. Jason Rapert, R-Conway, filed a bill that would make abortion illegal in Arkansas with an exception for the life of the mother — legislation that, if passed, would directly call Roe into question. 

“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 told NBC News of the legislation.

In Kentucky, Attorney General Daniel Cameron asked the Supreme Court in October to reinstate its ban on dilation-and-evacuation abortion, a method commonly used after 11 weeks that results in the dismemberment of the unborn child. Twenty states filed an amicus brief in support of Kentucky’s petition in December.

One case that the Supreme Court has delayed taking action on is a Mississippi law that would ban abortion after 15 weeks. The state is asking the court to “clarify whether abortion prohibitions before viability are always unconstitutional.” Louisiana has a similar 2018 law that would take effect if the court upheld the Mississippi law.


A Quiet SCOTUS Term?

Katie Glenn, government affairs counsel at Americans United for Life, told the Register that historically the Supreme Court doesn’t “take major abortion cases in back-to-back years. There tends to be a year or two in between.” And, given last summer’s June Medical Services v. Russo 5-4 decision that a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital was unconstitutional, “we are expecting it to be a little bit quieter of a term as we watch some of these other cases percolate up towards the court.” 

In fact, the court did turn away a challenge this week to a Pennsylvania law creating 15-foot buffer zones between pro-life protesters and abortion facilities in Pittsburgh. 

Glenn pointed out the exception to the court’s avoidance of abortion cases this term was the case of Food and Drug Administration v. American College of Obstetricians and Gynecologists, in which the Supreme Court ruled 6-3 on Jan. 12 in favor of halting a nationwide injunction from a Maryland judge temporarily suspending the Food and Drug Administration’s rules requiring a doctor’s visit for the medication abortion drug mifepristone due to the coronavirus pandemic. The case is significant as it is the first abortion-related case to be decided by the court since the addition of Justice Amy Coney Barrett. 

However, it is fairly narrow as it deals specifically with the circumstances of the COVID-19 pandemic. 

“The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion as a general matter,” Chief Justice John Roberts wrote. “The question is instead whether the District Court properly ordered the Food and Drug Administration to lift those established requirements because of the court’s own evaluation of the impact of the COVID–19 pandemic.”

“Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health,’” Roberts said.


Hidden Extremism in ‘Roe’ Bills

Glenn noted that there are “a couple of states that have some more extreme language” on abortion in some upcoming measures. She cited Vermont as one instance of this where lawmakers will be considering an addition to the state constitution stating that “an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course.” 

It would appear as a ballot measure in 2022, and prohibit the right to “reproductive autonomy” from being denied or infringed without a compelling state interest, which would have to be through the least restrictive means. State Rep. Jill Krowinski, D-Burlington, who was previously the vice president of community affairs and education at Planned Parenthood of Northern New England, helped introduce the proposal. 

Massachusetts recently became the 14th state to pass a law establishing a right to abortion that would remain in place if the Roe v. Wade decision was overturned. According to the Guttmacher Institute, the others are California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Nevada, New York, Oregon, Rhode Island, Vermont and Washington.

Glenn said that these bills enshrining abortion into state law send the message that “you can’t say that the state has a compelling interest in protecting life and protecting women’s health and safety. Abortion is No. 1 over everything. That’s what those bills are doing and lawmakers don’t want to say that’s what they’re doing because it’s so extreme and it’s so far out of the mainstream of what the American people believe.”

Glenn added that there is often an “education gap” where some lawmakers don’t realize how extreme such abortion legislation can be. She referenced a current District of Columbia law that allows “abortion without limitation for anyone all the time. Most of the city council doesn’t know that and I heard someone in city hall here in D.C. when they were told we have abortion all the way through pregnancy, they said ‘No, it ends at 24 weeks.’” 

She pointed out that the Dupont Clinic in D.C. even states on its website that “if you are 26 weeks or later into your pregnancy, we can still see you, regardless of your medical history, background or fetal indications. We do not require any particular ‘reason’ to be seen here — if you would like to terminate your pregnancy, we support you in that decision.”


The Fight in Massachusetts

In Massachusetts, where the ROE (Remove Obstacles and Expand Abortion Access) Act which codified Roe v. Wade was recently made law, Democratic Gov. Charlie Baker attempted to veto the legislation due to a portion of it that lowered the age from 18 to 16 years of age for obtaining an abortion without parental consent. The legislature overrode his veto in December.

Myrna Maloney Flynn, president of Massachusetts Citizens for Life, told the Register that “the initial ROE Act attempted to eliminate any age requirement, and girls as young as 12 would have been able to walk into a clinic without anyone knowing about it.” But “thankfully, our team of advocates was able to convince lawmakers to keep parental rights in place for parents of very young girls and, more importantly, protect the girls themselves.” 

She regretted that “lawmakers recently added language that permits non-physicians to perform abortions. Sadly, our women lost on this and are less safe today than they were last week.”   

Flynn said that Planned Parenthood and NARAL “mobilized support among the general public by scaring Massachusetts residents, claiming that President Trump or the Supreme Court would soon outlaw abortion. In this way, and by naming the bill ‘ROE,’ abortion rights supporters were able to easily get the attention of both state lawmakers and their constituents.”

“Those groups have money and power,” Flynn emphasized of the coalition behind the bill.

Flynn said that despite this recent setback, Massachusetts Right to Life has “seen minds opened and hearts changed, and so we will keep working. … We had great success in educating our neighbors, young and old, around the state over the last 24 months, and we intend to continue our efforts in exciting new ways, starting now.”