David S. Cohen is a law professor at Drexel University’s Kline School of Law. Carole Joffe is a professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco.
For supporters of abortion rights, these are anxious times. President Trump has filled the federal courts, including the Supreme Court, with judges thought to be hostile to legal abortion. And this year, state legislatures have passed a seemingly endless stream of anti-abortion laws. Yet abortion rights supporters shouldn’t feel defeated. In fact, even in the age of Trump, there are many reasons for celebration, as the abortion rights movement is working just as hard — and succeeding at times — to increase abortion access and protect reproductive rights. These promising developments should galvanize supporters and offer important lessons about how to preserve and even expand access to abortion.
There’s no denying that the fate of abortion rights in this country is at a critical juncture. The Supreme Court has the opportunity to radically change abortion law for everyone, as justices are considering taking several different cases about abortion rights. With Justice Brett M. Kavanaugh replacing Anthony M. Kennedy, any one of these cases could present the court’s new conservative majority with the opportunity to revisit and even overturn Roe v. Wade.
But, propelled in large part by a young, diverse wave of advocates for reproductive justice, state and local governments have vigorously responded to this threat.
Earlier this year, New York overhauled its outdated abortion law, solidifying the right to abortion in case the Supreme Court overturns Roe while also allowing medical professionals to treat women later in pregnancy if the pregnancy threatens their health. Vermont, Rhode Island and Illinois are considering similar legislation, with strong prospects of passage.
States and cities have also taken important steps to guarantee access to abortion and reproductive health care in places and situations where it has been out of reach.
In Kansas, state courts blocked the legislature’s ban on abortion by telemedicine, an important development that will increase access to the procedure for the large, sparsely populated state, and found a constitutional right to abortion under the state constitution, stopping a ban on second-trimester abortions from taking effect. In Maine, the legislature is on the verge of expanding Medicaid coverage to include abortion while also removing a ban that prevented advanced-practice clinicians, including nurse practitioners, physician assistants and certified nurse-midwives, from performing abortions.
New York City is considering becoming the first municipality in the country to directly contribute public dollars to a local abortion fund, which will bolster the private charitable organization’s ability to pay for abortions for those who can’t afford them. And St. Louis recently passed a bill requiring access to high-quality prenatal and postpartum care for women who are incarcerated in the two local jails.
State and local governments have also moved to protect abortion providers and their patients from harassment and misinformation. In New Jersey, the state Senate unanimously passed a law to protect abortion providers’ identities from public discovery; the state Assembly is close to passing it as well. In February, Chicago defended its abortion clinic buffer zone before the federal appeals court for the region, meaning abortion patients there will be protected from anti-abortion harassment at clinic entrances. Pittsburgh, Harrisburg, Pa., and Englewood, N.J., are also defending their buffer zones in federal court. Late last year, Hartford, Conn., started enforcing a local ordinance to protect abortion patients from being deceived by crisis pregnancy centers that don’t inform customers that they are not licensed medical facilities.
This trend isn’t new. Last year, more than half the states in the country adopted laws that expanded reproductive rights and access, involving not only abortion but contraception and sex education as well.
To be sure, these pro-choice initiatives help only the people who live in or can travel to these select states and cities. Elsewhere in the country, anti-abortion lawmakers have taken extreme steps to restrict abortion access in their jurisdictions.
Kentucky and Utah have banned abortions based on genetic anomalies. North Dakota now requires abortion clinics to tell patients that a medication abortion can, despite no peer-reviewed evidence supporting this theory, be “reversed.”
Meanwhile, Arkansas and Utah have banned abortion at 18 weeks of pregnancy, and Kentucky and Mississippi at six weeks. If the courts allow these six-week bans to stand, they would effectively be a complete ban on abortion, because few women have their pregnancies confirmed before that point. A six-week ban awaits the Georgia governor’s signature, and at least 10 other states have introduced the same law.
These developments are scary for abortion rights and access, but it is undeniable that while abortion is being restricted in some places, proactive state and local developments are helping significant numbers of people get access to the abortion and reproductive health care they need.
This proactive wave is proof that a pro-choice strategy is succeeding, at the same time Roe is being threatened. A national decision protecting the right to an abortion may be in danger. But abortion access will not vanish, not if cities and states continue to innovate to protect and expand access, and especially not when abortion rights supporters — a majority of Americans — refuse to give up in the face of daunting times.