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Republican-led states rush to pass antiabortion bills before Supreme Court rules on Roe

Lawmakers in at least 29 states, anticipating a new legal landscape, have filed measures to restrict abortion

Antiabortion supporters march during a Kansans for Life event on Jan. 25, 2022, in Topeka, Kan. (Evert Nelson/The Topeka Capital-Journal/AP)

Nebraska lawmakers kicked off the new year by introducing a bill to ban all abortions if the Supreme Court’s landmark Roe v. Wade decision is overturned. The next day, Florida legislators announced their plan to narrow the window for abortion access from 24 weeks of pregnancy to 15. And later that week in Phoenix, state legislators unveiled the Arizona Heartbeat Act, designed to mimic a Texas law passed last year.

With the U.S. Supreme Court expected to decide in the coming months whether to upend its nearly 50-year precedent that established a constitutional right to abortion nationwide, lawmakers in Republican-led states across the country have moved aggressively in recent weeks to lay the groundwork for a new era of abortion restrictions.

While it’s possible that the high court either will overturn Roe or leave the precedent fully intact, many legal scholars and advocates on both sides anticipate the justices will land somewhere in the middle, instantly changing the standard for abortion legislation. Antiabortion lawmakers are trying to predict what the Supreme Court might do as they craft laws designed to take effect soon after a ruling, whatever the justices decide.

“We don’t know exactly what that decision is going to be yet,” said Arkansas state senator Jason Rapert (R), who has been jockeying to pass a bill modeled after the Texas law, which banned abortion after six weeks. “Until that decision is released, we need to pick up every tool to save babies’ lives — and do all we can, whenever we can.”

The push for new laws reflects the pent-up energy among antiabortion lawmakers who have been constricted for decades by parameters established in Roe v. Wade and Planned Parenthood v. Casey, which declared laws unconstitutional if they impose an “undue burden” on someone seeking an abortion before their fetus is viable outside of the womb. The court’s much-anticipated ruling this year in Dobbs v. Jackson Women’s Health Organization relates to a law passed in 2018 in Mississippi, which poses a direct threat to Roe because it bans abortion at 15 weeks of pregnancy except in cases of medical emergencies or fetal abnormalities. Fifteen weeks is significantly before viability.

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So far, lawmakers in at least 29 states have filed antiabortion legislation in their 2022 legislative session. Those efforts have helped inspire a push in the other direction in some states where Democrats hold power, with pro-abortion rights legislators in at least 17 states filing bills that aim to protect abortion access, according to Planned Parenthood.

States are “building the framework they want to see,” said Catherine Glenn Foster, president of Americans United for Life, a national organization that works with state legislators to draft antiabortion bills.

All told, if Roe falls, 26 states are “certain or likely” to ban abortion, according to the Guttmacher Institute, a nonprofit research center that supports abortion rights.

Many of those states already have a post-Roe legal infrastructure in place. Twelve states, for instance, have “trigger bans” that would ban abortion outright as soon as Roe is overturned, while five others have bans still on the books from before Roe took effect, which lawmakers could bring back to life. Other states have passed laws banning abortion after six weeks of pregnancy — measures that are currently stalled or have been ruled unconstitutional in the courts.

Among the most sweeping antiabortion efforts introduced this session are measures that would create trigger bans in four more states: Nebraska, Ohio, Oklahoma and South Carolina. Lawmakers in Indiana have proposed a bill that would prompt a special session if the Supreme Court rolls back abortion protections significantly, where legislators could ban abortion or pass other abortion restrictions.

The debates unfolding in state capitals are likely to add to an emerging focus on abortion in this year’s midterm elections, particularly with the court’s ruling expected in June, just months before voting ends in November. This issue has drawn the attention of several prominent Republican governors with national ambitions, including Florida Gov. Ron DeSantis and South Dakota Gov. Kristi L. Noem, who pledged this month to protect “both unborn children and their mothers” until the day that Roe is overturned.

The coming retirement of Justice Stephen G. Breyer will not affect the immediate fate of Roe, which is expected to be decided before he leaves the bench, nor will it alter the ideological makeup of the court, given that he is likely to be replaced by a fellow liberal. But the spectacle of partisan confirmation hearings in a 50-50 Senate, with abortion and other social issues at the forefront, is also expected to reverberate across the political landscape.

A workaround until Roe falls

Much of the recent action is centered on replicating the Texas law, known as Senate Bill 8, which evaded the Roe framework by empowering private citizens to enforce the law through civil litigation.

Legislators in eight states — Ohio, Florida, Missouri, Alabama, Arkansas, Oklahoma, Arizona and Wisconsin — have looked to duplicate Texas-style bans since September, with several more states expected to introduce similar legislation in the coming weeks. In South Dakota, Noem introduced draft text of a similar bill on Jan. 21, while antiabortion activists across the country rallied at the March for Life.

Kristin Ford, the vice president of communications and research at NARAL, a national abortion rights organization, said Texas copycat bills are “basically a workaround.” Although the bills are unlikely to take effect before the Supreme Court’s decision, she said, these bills could be implemented even if the high court upholds Roe.

“The anti-choice movement won’t need a workaround once Roe falls, but for now they’re using these creative and highly troubling tactics to get their agenda through,” Ford said.

In December, the Supreme Court announced its decision to allow Texas abortion providers to challenge S.B. 8 but left the law in place in the meantime. Although many considered the ruling a “narrow victory” for abortion rights, some antiabortion lawmakers saw the decision to let the law stand as a green light for their respective bills.

By offering critiques of the Texas law in their decision, said Missouri state representative Mary Elizabeth Coleman (R), the justices essentially offered “lightning-fast feedback” on how S.B. 8 could be improved.

Over the next few weeks, Coleman said she’ll be working to ensure the strongest possible version of her bill makes its way through the Missouri legislature. Her plan would ban abortion after cardiac activity is detected on an ultrasound.

As June approaches, Coleman said, states should have “as many options in place as possible to protect the unborn.”

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15 weeks: A Republican ‘compromise’

Not all GOP lawmakers are ready to make the Texas law their own, with some citing concerns about endorsing what many have called “vigilante justice.”

West Virginia and Arizona lawmakers have also moved to ban abortion at 15 weeks, and Iowa lawmakers have proposed a bill that would ban abortion after 12.

Florida was the first state where legislators introduced a Texas-style antiabortion law, doing so in September. But four months later, several leading lawmakers introduced what they’re casting as a more moderate version. That version would ban abortion after 15 weeks of pregnancy, like the Mississippi law at issue in Dobbs, without the Texas enforcement method. Asked why Florida lawmakers had settled on proposing a 15-week cutoff, Rep. Erin Grall (R), who is sponsoring the measure, said she wanted to mirror the law before the Supreme Court.

“I believe that we have a unique opportunity in the fact that the Supreme Court is considering 15 weeks right now,” Grall said in a committee hearing Jan. 19. “This would allow Florida to save as many babies as possible, as soon as possible after that decision is made.”

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The Texas-style enforcement methodgave most of us pause,” said Florida Sen. Kelli Stargel (R), who introduced the 15-week ban in the senate. “I think this is the right compromise.”

DeSantis, who had been mostly silent on the Texas copycat bill introduced in Florida, voiced his support for the 15-week ban, saying that he found the bill “very reasonable.”

Abortion rights advocates say they are especially worried about the potential change in Florida, which currently allows abortion up to 24 weeks and has no mandatory waiting period, making it a destination for people seeking later-term abortions throughout the Southeast.

A 15-week ban in Florida would be “devastating” for patients in states such as Georgia, Louisiana and Alabama, said Olivia Cappello, the press officer for state media campaigns at Planned Parenthood. Patients who are further along in their pregnancies than 15 weeks would have to travel to North Carolina for care, she said.

States as abortion destinations

The push in GOP-led states have been matched, in some cases, by efforts in Democratic-run places to create abortion rights safe havens.

New Jersey Gov. Phil Murphy this month signed the Freedom of Reproductive Choice Act, making New Jersey the 15th state to codify the right to abortion.

“Now, once I sign this bill, regardless of whether the Supreme Court overturns Roe v. Wade, New Jersey’s position in supporting the right to reproductive autonomy will remain clear and unchanged,” Murphy said.

A similar amendment is moving through the Vermont legislature. If passed, Proposition 5 will go before Vermont voters in November.

Other Democratic states are positioning themselves as abortion destinations, trying to pass laws that will allow them to better serve people traveling to their abortion clinics from antiabortion states. In Maryland, for example, state legislators are planning to introduce the Abortion Care Access Act, which would allow nurse practitioners and nurse midwives to perform abortions, along with physicians.

“Looking at what might happen in the Supreme Court, we are expecting to see pressure from surrounding states,” Maryland state delegate Ariana Kelly (D) said at a Jan. 20 news conference. Abortion access could be under threat in West Virginia, Pennsylvania and Virginia, she said.

“Maryland is going to be a place that’s going to be providing a lot more abortion care.”

Roe v. Wade and abortion access in America

In June 2022 the Supreme Court struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens now? The legality of abortion is left to individual states. The Post is tracking states where abortion is banned or under threat, as well as Democratic-dominated states that moved to protect abortion rights enshrined in Roe v. Wade.

Abortion pills: Abortion advocates are concerned a Texas judge’s upcoming abortion pill ruling could halt over half the legal abortions carried out nationwide. Here’s how the ruling could impact access to the abortion pill mifepristone.

Post-Roe America: With Roe overturned, women who had secret abortions before Roe v. Wade felt compelled to speak out. Other women, who were and seeking abortions while living in states with strict abortion bans shared also shared their experience with The Post through calls, text messages and other documentation that supported their accounts. Here are photos and stories from across America since the reversal of Roe v. Wade.