In New York, it’s easier than ever to obtain an abortion up until the moment of birth. Not so in Kentucky, Mississippi and Ohio, which enacted legislation this year banning most abortions after the detection of a fetal heartbeat, as early as six weeks.
The 1973 Roe v. Wade decision was supposed to create a national standard on the procedure, but with Roe on the ropes, a flood of abortion legislation has expanded and underlined the divide between red states seeking to overturn the high court ruling and blue states fighting to preserve it.
Mary Ziegler, professor at Florida State University College of Law, attributed this year’s aggressive legislative push on both sides of the abortion issue to a combination of the increasingly polarized political climate and a “reaction to the court.”
“The heartbeat bills are designed to be a vehicle for the court to overturn Roe quickly, and the New York bill is one of the kinds of things you’d expect to see in anticipation of a post-Roe world,” she said.
The indirect credit goes to Justice Brett M. Kavanaugh, whose addition to the Supreme Court in October solidified the 5-4 conservative majority and spurred the ambitious pro-life bills making their way through Republican-led state legislatures.
Michael Gonidakis, president of Ohio Right to Life, called the fetal heartbeat bill “the best strategy at this time and with this court” to scuttle Roe.
“We believe this is the most pro-life court we have had in over a generation,” said Mr. Gonidakis. “When President Trump’s two nominees became members of the court, we knew we had the best shot with SCOTUS in my lifetime. Of course, there are no guarantees, but we feel confident.”
The reaction has been opposite in blue states such as New York, where activists and lawmakers who support abortion rights have pushed legislation to “codify Roe” by enshrining abortion protections into state law, expanding access and removing restrictions.
“It’s a reflection of how the politics of abortion have polarized further,” said Ms. Ziegler. “You see Democrats in blue states expecting to make political hay from bills that might have been considered extreme in the past, and something similar being true of heartbeat bills.”
New York Gov. Andrew Cuomo, a Democrat, signed a bill in January clearing the way for late-term abortions. In Illinois, a bill to repeal a 1995 law requiring parental notification before minors may undergo abortions cleared a Senate committee last month.
Illinois Gov. J.B. Pritzker, a Democrat, signed an executive order in January ensuring that state employees have abortion insurance coverage after vowing to make Illinois “the most progressive state in the nation” on “women’s reproductive rights.”
Vermont is one of seven states with virtually no limits on abortion, and state legislators are determined to keep it that way with legislation and a constitutional amendment making official the pro-choice status quo. Each has been approved by one legislative chamber.
Despite the blue state activity, the Guttmacher Institute, a think tank once affiliated with Planned Parenthood, said that “those efforts were overshadowed by attempts to restrict abortion access.”
“Although the overall number of abortion restrictions introduced so far in 2019 was essentially the same as in the first quarter of 2018, the extreme nature of this year’s bills is unprecedented,” Guttmacher said in its April 3 analysis.
“In particular, conservative state legislatures are looking to enact abortion bans in the hopes of kick-starting litigation that will give the U.S. Supreme Court, and its majority of conservative justices, ample opportunity to undermine or eliminate abortion rights,” the analysis said.
In addition to the heartbeat bills, Republican governors in Arkansas and Utah signed bills this year scaling back the gestation limit on abortions to 18 weeks. The fetal heartbeat bills — which have passed in seven states, although courts have overturned two of them — would draw the line at six to 12 weeks.
The heartbeat bills are moving through the court system. A judge blocked the Kentucky bill last month pending a legal challenge, and the Iowa Supreme Court declared the state’s 2018 bill unconstitutional in January.
The most ambitious pro-life bill with a chance of passage is in Alabama, where Republican state Rep. Terri Collins introduced legislation this month that would forbid most abortions two weeks after conception.
“With liberal states like New York rushing to approve radical late-term and post-birth abortions, passage of this bill will reflect the conservative beliefs, principles, and desires of the citizens of Alabama while, at the same time, providing a vehicle to revisit the constitutionally-flawed Roe v. Wade decision,” Ms. Collins said in a statement on Alabama.com.
Growing blue-red chasm
Time was when a state legislator would have been reluctant to sponsor an ambitious abortion measure on either side of the issue for fear of alienating moderate voters. No longer.
“This is emblematic of the divide, the cultural and political divide, in the country,” said Family Research Council President Tony Perkins.
He attributed the red state reaction in part to the New York bill, which was greeted at the signing ceremony with enthusiastic cheers, and Virginia Gov. Ralph Northam, who was accused of condoning infanticide in his comments this year about a late-term abortion bill.
“I think Gov. Cuomo really ignited something,” Mr. Perkins said. “New York took the first step by passing the law and celebrating the law, and what you see in legislatures is other states pushing back.”
Then there is the Trump factor. His 2016 presidential victory came as a sign that a national election could be won by firing up a subgroup of voters rather than watering down the message to appeal to moderates.
“To some extent, it’s a function of President Trump because people read his campaign to some degree as being about energizing a smaller base rather than always reaching to the middle,” Ms. Ziegler said. “I think a lot of politicians think maybe they can copy that playbook. If you excite people who are extremely pro-life or extremely pro-choice, you may see more of a benefit.”
The risks of taking a stronger stance on abortion also have diminished as pro-choice Republicans and pro-life Democrats increasingly become endangered species.
The result may be that abortion plays a larger role than ever in the next voting cycle. “I think it’s going to carry over into the 2020 election,” Mr. Perkins said.