With about 38 state legislatures set to reconvene in January, according to the National Conference of State Legislatures, lawmakers are preparing to debate issues that affect life’s most intimate decisions. In Georgia, a Republican lawmaker wants to criminalize prescribing hormones for transgender youth. In California, criminal justice advocates are pushing to create “safe consumption” locations for drug addicts. And nationwide, antiabortion activists are gearing up for another round of efforts to curb access, with parental-notification requirements and bans on abortifacient medications.
The coming statehouse battles reflect the deepening divide in the United States’ culture wars, and advocates expect state policy debates will influence how voters think about the 2020 presidential election.
But centering those contentious issues risks alienating swing voters for both parties, said Andrew Taylor, a professor of political science at North Carolina State University.
“If there’s a sense that a state legislature is going too extreme, too unfair, too intolerant in either direction for moderate voters, this might make an impact,” Taylor said.
Republicans still control a majority of state capitals, holding 26 governorships and 29 state legislatures. But Democrats have made gains in statehouses for the past two years, including the November election of Kentucky’s governor and flipping both chambers of Virginia’s legislature.
In some states, bipartisanship could emerge on issues the Democratic Party has traditionally prioritized. Lawmakers in several traditionally conservative states are under pressure to find revenue to give teachers raises and to fix roads. In Florida, lawmakers are expected to consider proposals to deal with rising sea levels and climate change. And health-care advocates are optimistic that conservative Southern and Midwestern states will continue to back away from past opposition to expanding Medicaid.
But Taylor said he believes that, as the number of independent voters continues to shrink in the Trump era, even more legislators could be prompted to push controversial legislation.
In California, for example, criminal justice advocates say they will push lawmakers to set up locations where people in certain cities can use hard drugs under medical supervision and without fear of being arrested. Jeannette Zanipatin, the California director for the Drug Policy Alliance, said the “safe consumption” locations would be modeled after similar programs in Canada and Europe that are designed to prevent fatal overdoses.
In New York, where Democrats now have complete control of the state government, some party leaders are expected to push for the nation’s first single-payer health insurance program. The program, which would be funded by new taxes, could essentially eliminate private insurance in the nation’s fourth-most-populous state.
Assemblyman Richard N. Gottfried, a Manhattan Democrat and lead sponsor of the legislation, said he wants New York to use state policy to force a broader national debate over health care.
“From the very start of the United States, a lot of progressive change has begun at the state level and eventually goes national,” said Gottfried, noting that New York more than a century ago led the way in the fight for labor rights and a public school system.
The push for single-payer health care comes after Democrats broke Republicans’ grip on the state Senate in 2018. The GOP had controlled the body for much of the past century.
Earlier this year, the new Democratic majority pushed through legislation to eliminate nearly all carbon emissions, codify the right to an abortion, end cash bail for many criminal defendants and implement new protections for undocumented immigrants, farmworkers and gay and lesbian residents.
The liberal group Make the Road New York is pushing for lawmakers to go further, with proposals to ban Immigration and Customs Enforcement agents from operating near courthouses, extend government-financed health insurance to undocumented immigrants, decriminalize sex work and bar schools from suspending misbehaving students.
In some states, abortion could be one of the most polarizing issues on the legislative docket, for the second consecutive year.
With court challenges halting many of last year’s “heartbeat laws” — which banned abortion after about six weeks of gestation — antiabortion activists are looking to other restrictions, said James Bopp, who has served as general counsel for National Right to Life since 1978. He is writing model legislation that would force parental notice and ban procedures where abortion is induced by pills.
“We have sobered up since the glow of [Brett M.] Kavanaugh’s Supreme Court appointment. No one thinks that the Supreme Court is going to overturn Roe v. Wade right now,” Bopp said in an interview, referring to the watershed 1973 case that protects abortion. “For that, we need Trump to win again and have more presidential judicial conservatives.”
Elizabeth Nash, a senior state issues manager at the Guttmacher Institute, an abortion rights research group, said conservative states might feel emboldened by the Supreme Court’s announcement that it would not review a Kentucky law that requires doctors to give women a detailed description of fetal development during an ultrasound.
At the same time, lawmakers in left-leaning states are expected to consider new proposals to enshrine abortion rights in state constitutions. In Vermont, Rep. Ann Pugh (D) is working on such a constitutional proposal.
“The right of an individual to make their own medical decisions is being threatened across the country,” she said.
Advocates say transgender rights are also one of the most explosive issues facing state lawmakers. In South Carolina, Georgia and Kentucky, legislators are planning to submit bills that would make it illegal for anyone under the age of 18 to get gender reassignment surgery, even with parental permission.
Georgia state Rep. Ginny Ehrhart (R) said her bill would make it a felony to prescribe puberty-blockers or other medication for transitioning. She said parents raised concerns about their children taking hormones and undergoing “life-alternating surgeries like mastectomies before their brains can fully process what they are doing.”
“We’re not saying we hate transgender people. This is not an indictment of LGBTQ rights. And it doesn’t stop anyone transitioning as an adult,” she said. “We are trying to protect vulnerable children. There is so much peer influence to try on trans or try on things at that age. And if they are too young to smoke or get a tattoo, this is something they need to be an adult to decide.”
Transgender activists and gay rights advocates argue that the issue is being sensationalized to rally conservative outrage and fear and to bolster support for President Trump in the 2020 election. Other left-leaning civil rights groups say that the government has no place in the doctor-patient relationship.
Izzy Lowell, a family doctor who works at Queer Med in Atlanta, said the legislation attacks a situation that rarely occurs. No one can medically transition until puberty, she said. Once they do, she said that she starts with low-dose hormone blockers to give them a chance to change course.
The process is reversible, she said, and gender reassignment surgery is rarely performed on minors.
Gay rights advocacy groups said they still are preparing to be on the defensive next year. Anti-transgender ads have appeared this year, including in the Louisiana governor’s race in which Republican candidate Ralph Abraham ran an ad stating: “As a doctor, I can assure you there are only two genders.”
“The Trump administration’s incessant attacks on transgender Americans have effectively spread across the country in 2019 state elections, and the public should expect this tactic to be used during critical elections next year, too,” said Sarah Kate Ellis, president and chief executive of GLAAD, a gay rights advocacy group.
The backdrop of the 2020 presidential election will also weigh heavily on state lawmakers’ actions surrounding voting rights and election procedures, said Scott Greenberger, executive editor of Stateline, an affiliate of the Pew Charitable Trusts that tracks state policy.
He expects proposals from Democratic lawmakers that try to “make it easier for people to vote,” including automatic voter registration, an expansion of early voting and more neighborhood polling places. GOP-dominated legislatures will probably push proposals to curb early voting and enact other “election security” legislation, such as enactment of stricter voter-identification laws.
“This is a huge issue, and that is likely to get more and more intense as the year goes on,” Greenberger said.
One issue that may attract bipartisan compromise is proposed reforms to the criminal justice system, as growing numbers of Republicans embrace the concept.
The American Legislative Exchange Council, which advises conservative state lawmakers, wants states to set new time limits on probation, better fund public defenders’ offices and reduce the use of solitary confinement.
In Arizona, state Rep. Walter Blackman (R) plans to reintroduce legislation that would make it easier for prisoners to be released from jail early for good behavior, said Lauren-Brooke Eisen, acting director of the Brennan Center’s Justice Program at New York University’s School of Law. In Colorado, Democratic lawmakers plan to push to close all private prisons by 2025.
“What is encouraging is it’s many states, with geographic diversity, and very different political makeups,” Eisen said. “It’s the one thing policymakers are agreeing upon at this very fraught time.”