Advocates, state lawmakers and legal organizations are setting up the infrastructure to prepare for potential changes to the landmark 1973 abortion rights case Roe v. Wade.
Four major conservative advocacy groups will host an event next January that will train abortion opponents on policies and activism strategies to implement under the assumption that the Supreme Court eventually may change its precedent and expand states’ authority over abortion.
The focus beyond Roe v. Wade comes after Republican officials successfully pushed for state laws this year that could challenge the 1973 case and liberal groups have played defense. Activists are planning more state initiatives next year.
“We know that Roe v. Wade will become a historical footnote in our nation, and this summit is part of our preparation for the day when abortion returns to the states and when Americans can have a voice and a vote for life,” said Kristan Hawkins, president of Students for Life of America, which is spearheading the event.
The conference, which was first described exclusively to CQ Roll Call, will be co-hosted by conservative think tank The Heritage Foundation, legal advocacy group Alliance Defending Freedom, and anti-abortion nonprofit Live Action.
“This is the post-Roe army — because we’re going to be that group. We’re going to be the only group that has a trained army,” Hawkins said. “What’s so powerful about the conference is we are going to be able to spread this vision out and get pro-lifers of all ages.”
The conference will be timed a day after the March for Life — the nation’s largest annual anti-abortion rally, held in Washington. The week involves a flurry of action from policymakers and advocates as a way to protest the anniversary of Roe v. Wade.
“The goal is that when they come to the March for Life, folks get excited, they get activated,” Hawkins told CQ Roll Call. “We want them to come to the conference and get their marching orders.”
The event will feature speakers, such as former Wisconsin Republican Gov. Scott Walker and former Department of Health and Human Services official Charmaine Yoest, and workshops.
The shift in perspective comes as both conservative and liberal states have enacted new laws this year that push the envelope in either restricting or protecting abortion rights, fueled by the same thought: An eventual challenge to Roe v. Wade could change the national landscape on abortion.
“A lot of the states are laying the groundwork for when the Supreme Court takes on Roe. Whether or not that will happen sooner rather than later is unclear,” said Alina Salganicoff, senior vice president and director of women’s health policy at the nonpartisan Kaiser Family Foundation. “Basically, if Roe v. Wade is overturned, it just goes back to the states.”
As conservatives operate under the belief that the high court will curb abortion rights and increase states’ control over the procedure, liberals are pushing to codify Roe into law in blue states and expand access to abortion.
Planned Parenthood acting President Alexis McGill Johnson said this week that the organization is in a tough spot.
“We are very concerned about Roe,” she said. “We have a court that hangs in the balance.”
Supreme Court Justice Clarence Thomas has hinted that an eventual re-examining of Roe is coming.
“This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,” Thomas wrote in a June concurrence related to an Alabama abortion ban. “Although this case does not present the opportunity to address our demonstrably erroneous ‘undue burden’ standard, we cannot continue blinking the reality of what this court has wrought.”
Activists are setting the stage for state policy changes in 2020, after conservative state legislators this year focused on setting up a Supreme Court challenge while liberals doubled down on abortion protections.
Abortion opponents in Colorado are attempting to include on the 2020 election ballot a vote on a 22-week abortion ban, but have faced procedural obstacles. Advocates are attempting to revise the initiative language in order to be included, and the Colorado Office of Legislative Legal Services intends to review the changes Friday.
Nineteen states already have laws that could restrict legal abortion access if Roe v. Wade is overturned. These include laws abortion rights advocates call trigger laws — which are abortion bans that would only be triggered if the Supreme Court precedent changes. They also include bans, enacted before Roe v. Wade guaranteed a national right to abortion, that are not being enforced and laws to restrict abortion based on the greatest restrictions permissible under current law.
On the other side of the debate, Democratic lawmakers in Illinois, New York, Rhode Island and Vermont have pursued legislation that would protect abortion regardless of an overarching national policy. Thirteen states currently protect the right to abortion access if the Supreme Court allows states to determine whether abortion is legal.
Looking ahead, Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a research organization that supports abortion rights, said to watch for possible changes in Massachusetts and Vermont.
Last year, Massachusetts repealed a dormant abortion ban enacted in 1845. The move came a month after Supreme Court Justice Anthony M. Kennedy — a crucial swing vote on abortion issues — announced his retirement.
Now, Democrats are looking to replace that law with a policy that would protect abortion access. Massachusetts is one of a handful of states with full-time legislatures.
Vermont is looking to become the first state to add protections for abortion access to its state constitution — which will be a yearslong process to complete. Nash said the policy has passed the state Legislature and will need to do so again in order to appear on the 2022 ballot.
Two states have ensured constitutional protections this year via the judicial system.
The Kansas Supreme Court in April ruled that the state constitution protects the right to bodily autonomy including abortion.
“The state may only infringe upon the right to decide whether to continue a pregnancy if the state has a compelling interest and has narrowly tailored its actions to that interest,” the 6-1 Kansas decision said.
The Iowa Supreme Court in June similarly declared that women have a fundamental right to abortion under that state’s constitution.
States that are protecting abortion rights are also thinking about access to providers.
Illinois cleared a law this year that guaranteed a woman’s right to an abortion and repealed some abortion restrictions.
Nash said that one of the reasons Illinois enacted legislation is because of its proximity to states like Missouri and Kentucky, which cleared abortion bans this year. The biggest issue now in states like Illinois that are providing abortions for residents of other states, Nash said, is whether abortion clinics will get more resources.
“The clinics in Illinois are at capacity. If they get a lot more people coming into their state, they will need more funding,” Nash said.
Salganicoff, of the Kaiser Family Foundation, said more action could be coming to protect abortion rights but it would involve multiple efforts and a long process.
“In states where they are trying to make sure that access is preserved, there is a lot of work underway, but it’s not always as easy as passing a law and having the governor sign it,” she said.
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