‘There’s a Lot of Work to Be Done’: Pro-Life Leaders Preview Post-Roe Landscape
The fight over abortion will kick into high gear at the federal and state level if Roe v. Wade is overturned.
With the Supreme Court poised to overturn Roe v. Wade, pro-life leaders are drawing the movement’s attention to what comes next if the 1973 decision that created a right to abortion across the country is no longer in effect.
For the most part, the fight to protect unborn children and their mothers won’t end with Roe’s reversal; if anything, that fight is expected to intensify, as the Supreme Court’s possible decision will usher in a new legal and social landscape, requiring new strategies to advance pro-life aims that will differ in each state as well as at the federal level.
“Pro-lifers need to remember, there’s a lot of work to be done,” Olivia Gans Turner, a Catholic and president of the Virginia Society for Human Life, told the Register.
Turner and other pro-life advocates are concerned people in the movement do not fully grasp that overturning Roe v. Wade and other case law that upheld the original ruling would not make abortion illegal. Instead, she emphasized that it would simply give states the ability to regulate the practice as they decide.
“The legislative process in the United States is critical to achieving … our common goal of passing the most protective legislation possible in order to provide protections to unborn children and their mothers,” she said. “It’s more important than ever that pro-life Americans knuckle down, get to know what they need to do, and get busy.”
If the court rules consistent with a leaked draft opinion written in February by Associate Justice Samuel Alito and reportedly joined by Associate Justices Amy Coney Barrett, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, abortion law is expected to quickly become balkanized, differing dramatically from state to state and with no overarching federal protection for the practice.
“If in fact this becomes the basis of the court’s majority opinion, there’ll be no basis for any kind of a federal constitutional challenge” to abortion restrictions, Paul Linton, a veteran attorney of abortion jurisprudence and author of Abortion Under State Constitutions (2012, Carolina Academic Press), told the Register.
At the federal level, this opens the door at least hypothetically to far-reaching restrictions on abortion, something Senate Minority Leader Mitch McConnell, R-Ky., alluded to last week when he said a congressional ban on abortion is “possible.”
However, with Democrats controlling both the Senate and the House, and pro-abortion Catholic Joe Biden in the White House, pro-life advocates are more immediately focused on preventing abortion-rights activists from passing federal legislation that goes beyond even what Roe allows, overriding all pro-life laws and restrictions on abortion.
“That [includes] women’s right to know laws, parental-involvement statutes, all the laws that have helped mitigate the abortion culture,” U.S. Rep. Chris Smith, R.-N.J., leader of the House Pro-Life Caucus, told the Register.
The Women’s Health Protection Act has already passed in the Democratic-controlled House, but not the Democratic-controlled Senate, due to the filibuster requiring a 60-vote threshold, which is expected to stay in place.
“Hopefully, we can get to the point [in Congress] where we affirmatively protect life from womb to tomb,” said Smith.
‘Balkanized’ Abortion Laws
At the state level, and given the major party’s increasingly clear alignment with either pro-abortion or pro-life positions, states where Democrats have control are expected to expand and codify abortion access, states where Republicans have control are expected to restrict abortion further, and states where Democrats and Republicans regularly contest or divide control of government will likely see limited progress in either direction.
A May 3 CNA analysis of the status of abortion state laws if Roe falls found that 18 states can be said to be moving in a more “pro-choice” direction, seven are “mixed,” and the remaining 25 are trending “pro-life,” with a variety of political measures — including pre-Roe abortion restrictions on the books, “trigger laws” in place when the precedent falls, pro-life amendments to the state-constitution and/or bans after eight or six weeks of pregnancy — set to go into effect post-Roe.
Linton expected one effort at the state level would be for pro-life advocates to take action to prevent state constitutions from recognizing a “right to abortion,” which some state courts have used to prevent abortion bans.
For instance, in August, Kansas voters will consider an amendment that would overturn its state Supreme Court’s recent decision finding a right to an abortion, and similar constitutional amendments are in varying stages of consideration in Iowa, Missouri and Oklahoma.
Louisiana is one of the states where voters passed a 2020 constitutional amendment that “neutralized” the issue of abortion, with voters affirming that their state constitution says nothing about a right to abortion. If Roe is passed, the state will see a 2006 abortion ban triggered by the end of Roe v. Wade — the Human Life Protection Act.
“We believe our law states that when Roe v. Wade is overturned, all unborn babies are protected by law in Louisiana through that Human Life Protection Act,” said Benjamin Clapper, the executive director of Louisiana Right to Life. “Immediately, the governor would need to take action to enforce that law and to direct the abortion facilities to cease and desist all operations.”
Clapper added that Louisiana pro-lifers will also be on guard against an increasingly popular form of abortion: chemical abortions, which can be performed at home by ingesting a pill, received in the mail.
The end of Roe v. Wade is likely to accelerate the U.S. transition from surgical abortion to medicated abortion as the standard type of first-trimester abortion, similar to Western European and Nordic countries. A Guttmacher 2022 survey found 54% of abortions were now done with abortion pills — and abortion groups have reported a surge in interest in them as a way to circumvent state abortion bans following the leaked Alito draft.
Clapper said Louisiana Right to Life is asking legislators to make sure laws are in place regarding chemical abortions that are illegally prescribed or obtained from out of state. However, the pro-life group stressed it was important to make sure the purveyor of abortion pills is prosecuted, not the woman herself who received and used them.
In states like those on the West Coast, in the Northeast and Illinois, which are dominated by pro-abortion Democratic majorities, the effort to advance abortion access is anything but stealthy. Pro-life advocates are already facing a furious effort to make abortion on demand as expansive and subsidized as possible.
Kathleen Buckley Domingo, executive director of the California Catholic Conference, told the Register that Roe v. Wade’s imminent demise, while beneficial for the pro-life movement at large, makes things more difficult for them in California.
“Many people thought that California was about as liberal as you could possibly be on abortion. That’s not true,” she said. “We have 22 bills in California right now that will be expanding abortion access in some way.”
Domingo said lawmakers are committing the state to fund abortion research, expand abortion access and enshrine abortion as a state constitutional right.
The California Catholic Conference, however, is pointing out that California’s government is funding only one reproductive choice: abortion. Lawmakers are showing no interest in funding a choice for birth or addressing the underlying, well-researched factors behind why most women feel they have to choose abortion instead of birth.
“This is tantamount to coercion,” Domingo said. “We tell low-income women we will pay for everything having to do with your abortion; but if you want to have a baby, then you’re on your own. You have to pay copays for your prenatal care, you have to find your own and pay for your own childcare if you have to go to doctor’s appointments, and if you want to take particular time to care for yourself during a pregnancy.”
Addressing Causes, Changing the Culture
Domingo said the conference, besides playing defense on the abortion bills, is also pushing two bills that should help even the scales toward life for low-income pregnant women: a bill to increase paid parental leave from 60% to 90% of a person’s income and one bill prioritizing housing for pregnant women in need.
“Our state is not helping with housing for families. It’s not helping with health care for families; it’s not helping with childcare for families,” she said. She added that instead of “focusing all of our money and our energy and attention on providing abortion for families who don’t want abortion,” the state should instead prioritize helping families “who want to have children and want to raise their children well in California.”
Similarly, Clapper and other Louisiana pro-life advocates also want to see existing options for women who become pregnant in crisis significantly strengthened. They are working to expand funding for the state’s 35 pregnancy centers and to expand educational resources promoting adoption.
“The state needs to promote the resources and options that women have, both before and after birth, supporting them,” said Clapper.
There have also been calls at the federal level for more robust assistance to mothers and their children and families.
For instance, Ethics in Public Policy Center fellow Patrick Brown took to the pages of The New York Times on May 7 to make a case for “the pro-family agenda Republicans should embrace after Roe,” which included permanently providing Medicaid and Children’s Health Insurance Program coverage for one year after birth, support for a modest parental paid leave, and expanding the child tax credit.
Legally restricting abortion and boosting family policies are vital parts of the post-Roe pro-life agenda, but advocates also stress that the movement needs to change not just laws, but also hearts and minds.
According to the most recent Gallup survey data on abortion, while most Americans support more restrictions on abortion than Roe allows for, six out of 10 believe first-trimester abortion — which accounts for nine out of every 10 abortions — should remain legal.
Virginia Society for Human Life’s Turner said the pro-life movement can’t ignore the reality this kind of polling reveals. Pro-lifers need to realize that the country’s divisions are a sign that the pro-life movement has not done enough to convince the general public that abortion need not be an option.
“My personal position in the movement has always been trying to achieve a sense of compassion and understanding of what compels women to think abortion is a reasonable thing to do when faced with an overwhelming or complex pregnancy situation,” she said. “As such, that means communicating to and educating the individuals around that woman why abortion is not helpful to her and is deadly to her child.”
Turner said the ultimate legislative goal of the pro-life movement on abortion should be a U.S. constitutional amendment.
However, polls routinely show the U.S. population’s views on abortion have been evenly divided over the past few decades. Turner said the pro-life movement will have to do an “enormous amount of work and education in changing hearts and minds,” far more than ever before, to get there.
“We have to develop the national will to do that.”