A year after Dobbs, here’s how states are legislating abortion

Abortion rights activists hold a large white and green banner with the words: We are STILL the Resistance.
Abortion rights activists march to the US Supreme Court building on June 24, 2023, in Washington, DC. The rally marks the one year anniversary of the decision that overturned Roe v. Wade. | Anna Moneymaker/Getty Images

In Ohio and Iowa, Democrats and Republicans present very different post-Roe strategies.

A year after the Supreme Court ended the federal constitutional right to abortion, individual states continue to grapple with ways to restrict abortion access, do away with it altogether — or in some cases, enshrine its protection in their own state constitutions.

Legislative methods to restrict abortion access have become increasingly draconian and creative; from Texas’s SB8, which requires vigilante enforcement against those suspected of providing abortions or aiding in their provision, to a South Carolina fetal personhood proposal that would allow for the death penalty for a person who obtains an abortion.

Though such laws face legal challenges, Republican lawmakers are attempting to enact them anyways. In Iowa, Gov. Kim Reynolds is calling for a special session of the Iowa legislature on Tuesday specifically to implement an anti-abortion law similar to a 2018 “fetal cardiac activity” ban. The 2018 law, which would have prohibited abortions after about six weeks of gestation, was recently struck down by the state Supreme Court.

On the Democratic side, abortion rights advocates have created a blueprint for protecting access to the procedure by using ballot measures. Putting the right to abortion on the ballot — whether it’s as a constitutional amendment codifying that right or giving the state courts permission to rule on the constitutional right to abortion — has been successful, even in some states where Republicans have legislative power. Now, in Ohio, 700,000 voters have signed a petition to put abortion rights on the ballot in an August special election in an attempt to enshrine the right to abortion in that state’s constitution.

As the fight to protect abortion access moves into state courts, state constitutions are perhaps the most critical shield against abortion restrictions both now and in the future; just as Roe v. Wade prevented ultra-restrictive state abortion laws from coming into effect for decades, so can state-level constitutional initiatives.

After Roe, abortion rights are being fought in state courts

Enacting abortion bans has not been easy in many states, even where Republicans hold great power. In South Carolina, intraparty disagreements about what abortion bans should look like — essentially, how far is too far — prevented the most extreme bans from passing for months after the Dobbs v. Jackson case unraveled the federal right to abortion. Three Republican women senators in particular were instrumental in preventing the most draconian bans from passing.

State courts often strike down anti-abortion laws when they do pass; Iowa’s Supreme Court is just one example. In South Carolina, where the legislature did finally pass a six-week ban with exceptions up to 12 weeks for rape, incest, fetal abnormalities, and the health of the pregnant person, South Carolina Circuit Court Judge Clifton Newman put an indefinite stay on the law until the Supreme Court takes it up and decides whether it is constitutional. As of now, in South Carolina, abortion is legal up to 22 weeks after gestation and in Iowa, up to 20 weeks after gestation.

In Indiana, where Gov. Eric Holcomb held a special session last year to push through sweeping abortion restrictions, legal challenges made it all the way to the state’s Supreme Court. That body recently upheld the ban, which prohibits all abortions except in cases of rape or incest, up to 10 weeks post-fertilization; in the case of a severe fetal abnormality; or to preserve the health or life of a pregnant person.

“Law made in haste is often bad law,” Jennifer Drobac, a law professor at Indiana University’s McKinney School of Law in Indianapolis, told the New York Times last August. “This highlights the fact that these guys are not anticipating how unworkable this legislation will be. This is going to impact thousands of people who get pregnant in Indiana alone.”

In Texas, where an anti-abortion law that relies on vigilante enforcement was instituted nine months before the Dobbs decision, a Johns Hopkins study found that there were around 10,000 more births between April and December of 2022 than there would normally have been. Not all of that can be attributed to SB8, Caitlin Myers, an economics professor at Middlebury College who studies abortion, told the Times. “It looks like they have demonstrated that births increased more in Texas than we would have expected,” she said. “The inference I’m less comfortable making at this point is that all of those excess births are because of SB8. Some of it may be, but I don’t think all of it will be. It’s just too high.” Still, the authors of the study said that no similar effect was found in the other 49 states and Washington, DC, during the same timeframe.

Though it’s challenging to get a full picture of the post-Roe national landscape partially because of the complications in passing state-level bans, and partially because other factors necessarily contribute to people’s access to abortion, the Texas study does offer a glimpse of how dramatically such legislation affects people’s lives.

Democrats look at abortion rights for 2024

In the face of unfavorable court rulings, conservative legislators persist in trying to ban abortion, making adjustments to try and please Republicans across the political spectrum and calling special sessions to ram through ultra-restrictive bans.

But ballot measures work as a tactic to maintain abortion access because they go directly to voters, and the opinions and efforts of legislators matter less. That’s why ballot measures aimed at protecting the right to abortion have worked in more conservative states like Kentucky and Kansas, not just in places like Vermont and California.

Last November, Kentucky voters defeated a ballot initiative stating explicitly that the right to an abortion is not in the state’s constitution. The state’s Republican legislature, which had passed a dramatic six-week ban on abortion and previously approved a trigger law making providing an abortion a Class D felony, also put the ballot measure to Kentucky voters. But voters, following an overall national trend, disagreed in fundamental ways with the kinds of abortion policies Republican lawmakers set out to pass.

Kentucky’s abortion bans are in effect while the Supreme Court decides on challenges to the laws.

Kansas and Montana voters also rejected efforts aimed at restricting abortion access in the fall, offering a window for Democrats and abortion rights supporters to use the law to protect abortion access, but Republican legislators have been trying to change procedure to blunt the effectiveness of using ballot measures to protect abortion access. Ohio’s largely Republican legislature instituted an August special election to decide whether or not to raise the vote threshold to enact a constitutional amendment — from a simple majority to 60 percent.

“They have tried everything under the sun to stop this,” Marcela Azevedo, president of Ohio Physicians for Reproductive Rights, told ABC News. “These are extreme measures and, to be honest, desperate.”

Abortion in Ohio remains legal until 22 weeks after gestation; the proposed ballot measure to amend the constitution would appear on the ballot in a November election.

Democrats have already begun highlighting extreme Republican positions on the right to abortion in battleground states like Wisconsin, Pennsylvania, Nevada, and Ohio. Candidates across the country are likely to run on abortion protection in 2024, Democratic Senatorial Campaign Committee spokesperson Nora Keefe told NBC News. “In 2022, voters rejected the GOP agenda taking away women’s right to make our own health care decisions and making abortion illegal without exceptions — and we know this will continue to be a defining issue in 2024 Senate races.”

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