Andrea Miller is president of the National Institute for Reproductive Health and the NIRH Action Fund.
Forty-six years ago, the Supreme Court issued the Roe v. Wade decision, which legalized abortion — and established the popular misconception that the Supreme Court alone determines whether abortion is accessible. In the near half-century since, states have passed more than 1,000 laws against abortion access. And with the looming threat that the court will gut or overturn Roe , we find ourselves in a moment similar to the one abortion rights advocates faced before Roe, in which the greatest possibility for protecting abortion rights and access lies in state-by-state action. That may seem like a discouraging prospect, but it’s a challenge that activists and elected officials should and are beginning to embrace.
As a blueprint for change, look to the state of New York, which, until Tuesday, banned abortion after the 24th week of pregnancy unless the mother’s life was threatened and forced women such as Erika Christensen to travel out of state to receive critical abortion care. New York was also one of only seven states in the country to criminalize self-managed abortion. And it was one of many whose laws have not kept pace with changes in medical practice to allow qualified, trained mid-level health professionals to provide abortion care.
New York may be a “blue monolith,” but for more than a decade, despite wide public support for abortion rights, an intransigent, anti-choice state Senate blocked any advances in abortion law. That stalemate lasted until voters woke up to the potential power of state government.
Candidates running for state office during November’s midterm elections campaigned on passing the Reproductive Health Act and ousted a number of opposition votes in the state Senate, including Martin Golden of Brooklyn and Kemp Hannon and Elaine Phillips from Long Island, who had stood in its way. Gov. Andrew M. Cuomo (D) championed the bill, which repeatedly passed the State Assembly by a 2-to-1 margin but was never allowed to reach the Senate floor until Tuesday, when it passed 38 to 24.
New York is not alone. We’ve seen similar shifts in states across the country, as voters become more enraged at the direction of the country, more informed and — in turn — more active.
In 2017, Delaware repealed parts of its pre-Roe criminal abortion ban. In Illinois, pressure from voters led then-Gov. Bruce Rauner (R) to reluctantly sign a law restoring public-insurance coverage for abortion, as well as removing a trigger law that would have banned abortion if Roe were overturned. And Oregon passed arguably the most progressive abortion legislation in the nation, requiring insurance coverage for reproductive health care, including abortion, regardless of immigration status or income.
This trend continued last year, as Washington state required health insurers to cover abortion if they cover maternity care. Massachusetts’s voters jettisoned the state’s most vociferously antiabortion legislator and state representatives repealed a mid-19th-century criminal abortion ban . Advocates had been lobbying for both measures for years.
New York stands to be an inflection point, adding powerful momentum to efforts to protect abortion rights and expand access in every state where it is possible. States such as Connecticut, Colorado, Delaware, Massachusetts, New Jersey, New Mexico and Wisconsin are among the states that could be up next.
It is true that if Roe v. Wade were to be overturned tomorrow, there are states where the hurdles to restore abortion access would be daunting, and in the short term, perhaps insurmountable. But even in those states, there are signs of hope as advocates and elected officials put forward an affirmative agenda in cities and statehouses.
In 2016, Columbus, Ohio, passed an ordinance that would penalize disorderly conduct in a safety zone around reproductive health clinics. In Austin last year, advocates with the Lilith Fund helped win passage of a law providing paid sick days, which could make it easier for women to take time off work to obtain abortions. Laws such as that one, coupled with renewed investments in abortion funds — which pay for everything from the procedures to the travel and logistical arrangements women need to reach places where abortion is legal and available — could help blunt the impact of state-level rollbacks on abortion access.
The fight to protect abortion rights and access at the highest court will continue: The principle that women have the right to make these intimate and fundamental decisions should not be compromised. But even if the Supreme Court overturns Roe v. Wade , giving anti-choice legislators an opportunity to turn even more of the country into “abortion deserts,” we still have options to preserve the oases women need so badly to make the best decisions for themselves and their families.