The Washington PostDemocracy Dies in Darkness

Opinion Where the real fight over abortion will take place

Gov. Kate Brown (D-Ore.) in March 2016.
Gov. Kate Brown (D-Ore.) in March 2016. (Anna Reed/AP)
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In Rhode Island, Gov. Gina Raimondo, a Democrat running for a second term, has called for a special legislative session to codify abortion rights into state law.

In Wisconsin, former state representative Kelda Roys, battling in a crowded Democratic gubernatorial primary, has declared that if federal protection of abortion rights is eliminated, she would pardon anyone charged with violating the state’s 169-year-old law criminalizing the procedure.

In Florida, ex-congresswoman Gwen Graham, in a five-way contest for the Democratic nomination for governor, has put reproductive freedom front and center in her campaign, saying she would veto any legislation that restricts abortion — and not-so-subtly reminding voters that she is the only female candidate of either party in the race.

Most of the attention surrounding the Supreme Court nomination of Judge Brett M. Kavanaugh has focused on the fireworks taking place in the Senate.

Deputy editorial page editor Ruth Marcus and columnist Megan McArdle debate the legal merits and value of keeping the Supreme Court decision. (Video: Adriana Usero/The Washington Post)

But the truth is, Republicans probably will have the votes they need to confirm a stalwart originalist from the U.S. Court of Appeals for the District of Columbia Circuit and give the high court a sharper rightward tilt. That means big consequences outside Washington, where the politics of this Supreme Court choice are heating up the governors’ races underway this year in 36 states.

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“This is an issue for all of us, and the states are obviously where the action is,” said Oregon Gov. Kate Brown , who is up for reelection. She has blasted her GOP opponent, state Rep. Knute Buehler, for saying that “abortion in this country is mostly settled as a legal matter.”

Not anymore.

If Roe v. Wade is overturned — or, as is more likely, chipped away — states will have more leeway to impose restrictions or outright prohibitions.

That has been happening already, of course. According to the Guttmacher Institute, a reproductive rights research organization, 19 states last year adopted 63 new restrictions on abortion rights and access.

But some are poised to go much further. Four states have “trigger laws” that would automatically outlaw abortion if Roe were rescinded. Another 10 — such as Wisconsin, where Roys is running — retain unenforced bans that were on their books when the Roe decision was handed down in 1973. Courts have blocked five states’ efforts to ban abortion after six or 12 weeks gestation, or in all but a limited number of circumstances.

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All of these seemed like hypotheticals until June 27, when Justice Anthony M. Kennedy, who had been the court’s swing vote on abortion, as well as a host of other highly charged social issues, announced his retirement.

Democrats have long struggled to motivate their base in years when there is no presidential candidate on the ballot, and to energize their voters about state-level races, which have been the basis for so much Republican activism. “We’ve been asleep at the switch for two decades on this,” said Gov. Jay Inslee (D-Wash.), who heads the Democratic Governors Association.

This issue could spark hard-to-mobilize voters, particularly younger ones who have never lived at a time when abortion was not freely accessible. With Roe the law of the land, nearly all the legislative momentum has been on the other side. Only nine states currently guarantee the right to an abortion before fetal viability, or when necessary to protect the life or health of the woman.

Another factor: A record 38 women, two-thirds of them Democrats, are running for governor this year, according to the current tally by Rutgers University’s Center for American Women and Politics.

“You have long histories of leadership on this issue, because it has impacted us personally, or people that we know,” said Oregon’s Brown, who recalled that her own political activism was awakened in 1984, when she was in law school and volunteered to escort women into an abortion clinic. The first legislation she introduced as a legislator in 1993 was a bill to require health insurance companies to cover contraceptives — something that took 16 years to get passed.

With the coming shift in power on the Supreme Court, abortion-rights forces across the country are about to learn two things the other side figured out a long time ago: This is a battle that must be waged over the long haul. And it is one where the fight begins at home.

Read more:

David Von Drehle: Roe v. Wade might not be doomed after all

Kathleen Parker: Calm down. Roe v. Wade isn’t going anywhere.

Gary Abernathy: Pro-lifers should focus less on Roe v. Wade and more on changing hearts

Nancy Northup: Roe isn’t just about women’s rights. It’s about everyone’s personal liberty.