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Abortion is on the ballot in two states, providing a glimpse into a post-Roe nation

The post procedure resting room inside the Hope Medical Center for Women, the only abortion clinic in Shreveport, La., photographed in February 2020. (Emily Kask for The Washington Post)
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As the confirmation of Supreme Court Justice Amy Coney Barrett raises the likelihood that Roe v. Wade could be overturned, voters in two states will decide whether to pass ballot measures to restrict abortion access, providing a window into a future without a nationwide right to an abortion.

In Colorado, voters will decide whether to ban abortions after 22 weeks of pregnancy, with exceptions only if the person’s life is in immediate danger. Seventeen other states have similar gestational limits.

And in Louisiana, abortion foes are hoping to lead the way in creating a fresh strategy to challenge abortion, with the hope that the landmark 1973 Roe v. Wade ruling is reversed. Voters will be asked to amend the state Constitution with language clarifying that there is no right to abortion or abortion funding, a type of constitutional amendment already adopted in Alabama, Tennessee and West Virginia.

“In so many ways, many people in Louisiana already live in a post-Roe environment,” said Steffani Bangel, executive director of the New Orleans Abortion Fund. Louisiana has passed more than 89 abortion restrictions since the Roe decision, more than any other state. In the past decade, the state has gone from having seven abortion clinics to three.

Under questioning from Sen. Amy Klobuchar (D-Minn.), Judge Amy Coney Barrett on Oct. 13 said there were still challenges and disagreements about Roe v. Wade. (Video: The Washington Post)

It is also one of 10 states that has passed a version of so-called “trigger laws,” which would ban abortion if Roe v. Wade was overturned. An additional nine states have other pre-Roe abortion bans that are unenforced, according to the Guttmacher Institute, a research and policy organization that supports abortion rights. But amending the state Constitution would make it difficult for the abortion ban to be challenged in court in Louisiana, helping clear the way to make the procedure illegal in the state and elsewhere.

“Already, patients are driving hundreds of miles,” Bangel said. “This amendment sets a dangerous precedent for what the possibility of a post-Roe world could look like in many states beyond Louisiana.”

Supreme Court vacancy spotlights Roe v. Wade

Angie Thomas, associate director of Pro-Life Louisiana, said this amendment is a different strategy than last year’s wave of “heartbeat bills,” which sought to outlaw abortion at six weeks, when a fetal heartbeat may be able to be detected, but typically before most women know they are pregnant. Such bills passed or advanced in several states across the South and the Midwest, but were quickly struck down by state courts.

This time, antiabortion activists want to ensure that abortion policy is made by “the state legislature and not through state judges,” Thomas said. “With the growing trend of state Supreme Courts declaring a right to abortion, it is essential for states to take action to protect themselves from pro-abortion judicial activism."

The ballot question comes just months after the U.S. Supreme Court in June struck down a different Louisiana state law requiring doctors who perform abortions to have admitting privileges at a nearby hospital, a win celebrated by abortion rights activists.

But that was before the death of Justice Ruth Bader Ginsburg and last month’s confirmation of Amy Coney Barrett, a conservative who is personally opposed to abortion rights. While she insisted in her confirmation hearings that her personal opinions would not influence how she would rule on cases related to Roe v. Wade, many on both sides of the political aisle believe she would rule to overturn it.

[Amy Coney Barrett’s most telling exchange on abortion and Roe v. Wade]

Bangel said abortion foes are using the ballot initiative to “see how far they can push Louisiana’s antiabortion presumed culture.” And it will not only be a referendum on whether Louisiana voters believe abortion should be banned; it will make Louisiana a testing ground for other states. “If you can pass it in Louisiana you can probably pass it in Texas or Georgia,” Bangel said.

Conversely, if the amendment fails, Bangel said, “it will create more space for a fight.”

In Colorado, voters are being asked to take a more incremental approach to eliminating abortion access, but one that abortion rights advocates say would still have dramatic consequences inside the state and beyond.

In 1967, more than six years before Roe v. Wade, Colorado was the first state to loosen restrictions on abortion. It still has relatively few restrictions on the procedure and no gestational limits. As a result, many women travel from out of state to seek later-term abortions in Colorado clinics. The Colorado Department of Public Health and Environment Office reported that 11 percent of abortions in the state involved patients who traveled from more than 30 states.

Only about 1 percent of abortions take place after 21 weeks, sometimes due to the discovery of fetal abnormalities or because the pregnancy resulted from incest and rape, according to the Guttmacher Institute. Others might delay their abortion because they struggled to pull together the money for gas or a plane ticket or child care, or because they had a hard time finding a provider, due to state restrictions on abortion, said Guttmacher’s Elizabeth Nash. Still others may not have known they were pregnant right away.

But if Colorado voters decide to pass the ballot amendment banning abortions after 22 weeks, women will have to travel to another state to find an abortion after this timeline. Guttmacher estimates that the average driving distance for a Colorado woman of reproductive age to a clinic offering later-term abortions would increase from 15 miles to 445 miles.

People in other states seeking late-term abortions would also no longer have Colorado as an option. “The impact is almost nationwide,” Nash said.

The issue has divided even the antiabortion community, some of whom want a full ban. But Giuliana Day, sponsor of Proposition 115 to End Late-Term Abortion Coalition for Women and Children, said that “an important point to underline is that late-term abortions are extreme by any national or international comparison. … This is the human rights issue of our lifetime."

Karen Middleton, president of the abortion rights advocacy group Cobalt Advocates, said the ballot measure is “another wake-up call that folks that support and advocate for abortion rights need to be much clearer about what abortion means.”

“Win or lose this ballot measure,” she added, “we have to guard against seeing it replicated in other states.”

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