As President Trump seeks to build an increasingly solid conservative majority on the Supreme Court, many states have begun preparing for a potential Roe v. Wade reversal. With the nomination of Judge Amy Coney Barrett, Democrats have resurrected old fears that the abortion issue will become a complicated mess.
If Roe was overturned, abortion debate would become a states issue, as it was until the 1973 decision. Back then, states had widely varying abortion laws, with some states outlawing the practice entirely. Especially since the 2018 confirmation of Justice Brett Kavanaugh, whose place on the court gave conservatives a 5-4 majority prior to the death of Justice Ruth Bader Ginsburg, abortion-friendly states have been amending their constitutions to keep abortion legal should Roe fall. At the same time, anti-abortion states have done the opposite.
A September report from the abortion advocacy group the Guttmacher Institute, released following Ginsburg’s death, warned of “grave consequences” if Barrett is confirmed to the court. Among these fears are the reversal of Roe, as well as “emboldened” anti-abortion activists pushing for greater restrictions in anticipation of friendly Supreme Court decisions.
Abortion advocates issued similar predictions after Kavanaugh’s confirmation, and many states began taking preparatory action. The New York state Legislature in January voted to expand abortion access, overturning pre-Roe restrictions that had gone unaddressed since the 1973 decision. Lawmakers passed the bill, which formally legalized all abortions before 24 weeks, on the anniversary of the Roe decision. The decision was widely praised by abortion advocates as forward-thinking.
Leana Wen, then-president of the Planned Parenthood Federation of America, called the law a “critical backstop” against the advances the Trump administration had made against abortion, following Kavanaugh’s confirmation.
“We need states, like New York state, to step up,” Wen told Salon at the time. “I hope that lawmakers across the country will look to New York and to other states to repeal bad policies that restrict access and do everything they can to protect access and expand the right to reproductive healthcare, which is healthcare.”
Vermont later that year codified abortion into its constitution, making the government unable to “deny or interfere” with the right to an abortion throughout pregnancy. The move, said state Rep. Ann Pugh, one of the bill’s primary sponsors, was to protect abortion rights when the future of Roe is “in question.”
“We thought we’d better be clear in Vermont,” she told the New York Times.
Vermont and Oregon are the only states, as well as the District of Columbia, that have enshrined in their constitution abortion protections throughout pregnancy since Trump took office, according to Guttmacher. Eleven other states, including New York, Illinois, and California, also significantly expanded abortion access in response to the Trump administration’s anti-abortion court appointments.
Abortion-rights activists tried strengthening abortion laws in other states, too. In a notable instance in Virginia, early last year, Democratic state legislators captured national attention when they attempted to pass an abortion bill that would allow the procedure up to the point of birth. The bill was supported by Gov. Ralph Northam, who, while defending it on a radio program, appeared to also endorse infanticide. His comments ignited a furor among anti-abortion activists, as well as Trump, who references Northam frequently when speaking about abortion.
Although rejected at the time, Virginia passed the bill when later that year, Democrats captured the majority in both state houses.
At the same time, many states with legislatures whose majorities oppose abortion have begun preparing for the path toward abortion illegality. Alabama, Louisiana, and Missouri all passed abortion restrictions in 2019, aimed at curbing access without declaring outright illegality. Some states have retained pre-Roe abortion bans that could go into effect should Roe be overturned.
As the Senate prepares to confirm Barrett, anti-abortion groups have begun targeting states where the movement will have to go on the offensive to win restrictions on abortion, according to researchers at the anti-abortion group the Susan B. Anthony List. Some of these include Virginia, Illinois, and Florida. Many of the states expected to be friendly to anti-abortion laws already have such laws on the books, not in force because of Roe.
Abortion, which has long been an electoral issue, has returned to the fore with the expected confirmation of Barrett. Both former Vice President Joe Biden and his running mate, California Sen. Kamala Harris, the Democratic vice presidential nominee, expressed worries that Barrett’s nomination would mean a disruption of the abortion status quo. Biden said that Trump effectively put Roe “on the ballot,” a claim which Trump denied. Harris said in response to a question from vice presidential debate moderator Susan Page that “a woman’s right to make a decision about her own body” is too important to risk leaving it to a judge who could potentially send the issue to the states.
While Trump has denied that Roe is on the ballot, anti-abortion activists have been clear that their aim to push the issue back into state territory. Following a 5-4 Supreme Court decision this summer against a 2014 Louisiana law that made it prohibitively difficult to obtain an abortion, activists predicted that the anti-abortion movement only needed one more Supreme Court justice to roll back Roe. Chief Justice John Roberts was the deciding vote against the anti-abortion movement, leaving the movement at a disadvantage unless it can secure another conservative justice.
“Who names the next justice wins,” said Susan B. Anthony President Marjorie Dannenfelser, a prominent anti-abortion activist who was instrumental in Trump picking Barrett.
