The Washington PostDemocracy Dies in Darkness

States pursue extreme restrictions in crafting post-Roe abortion law

Debbie Jeffreys of Metairie, La., demonstrates at Duncan Plaza in New Orleans on May 14. (Kathleen Flynn/Reuters)

The day after the stunning leak of a Supreme Court draft opinion overturning Roe v. Wade, Oklahoma Gov. Kevin Stitt (R) signed a ban on abortions in the state for pregnancies past six weeks. He wanted Oklahoma to be “the most pro-life state in the country,” which was in part why the state’s new ban included no exceptions for rape or incest.

Within 48 hours of the leak, Republicans in Louisiana advanced a bill that would classify abortion as homicide and allow prosecutors to criminally charge patients, not just abortion providers. Though the bill would ultimately be scrapped, its supporters vowed that they would continue to push for “what’s right.”

And by the weekend, state GOP lawmakers were openly questioning forms of birth control, including the Plan B pill, a widely used form of emergency contraception often provided to rape victims.

What had been a slow, deliberate erosion of abortion rights over the 50 years since the court’s ruling in Roe now seemed to be a flash flood of increasingly severe restrictions and proposals cropping up at the state level, abortion rights advocates say, as antiabortion Republicans envision a post-Roe world.

“I think these state lawmakers are feeling emboldened based on what they think is coming down the pike from the Supreme Court,” said Rachel Fey, who works on policy programs for Power to Decide, a nonprofit organization that seeks to prevent unplanned pregnancies and supports abortion rights.

“We are in uncharted territory,” Fey added. “In my 20 years in health and reproductive justice, I’ve never seen … such a plethora of extreme, extreme attacks, and that’s really saying something.”

Such concerns have largely been dismissed as alarmist by abortion foes, who say they are not focused on doing away with things like birth control — but who themselves are divided over what would come next if Roe is overturned.

After heated debate Thursday, GOP lawmakers in Louisiana stripped language out of their bill that would have criminally charged abortion patients with homicide, revealing a split within the antiabortion movement. State Rep. Danny McCormick (R), the bill’s sponsor, argued that a fetus must be granted the same protections as a person, while other Republicans urged caution, emphasizing that the antiabortion movement does not support imposing criminal charges on people who are pregnant.

The antiabortion movement turned away from punishing abortion patients because the public does not support those measures, said Mary Ziegler, a visiting professor at Harvard Law School who specializes in the history of abortion. According to a recent Monmouth University poll, nearly two-thirds of Americans support keeping abortion legal, either always or with some limitations. An additional 26 percent said it should be illegal with exceptions for rape, incest or to save the life of the mother. Only 8 percent said they thought abortion should always be illegal.

But there was no question that the prospect of the Supreme Court overturning Roe v. Wade, the 1973 decision guaranteeing a right to abortion, had energized Louisiana Republicans despite prevailing public sentiment. While 12 other states have introduced similar legislation granting full constitutional protections to a fetus from the moment an egg is fertilized, Louisiana’s bill was the first to move out of a committee, said Bradley Pierce, the executive director of the Foundation to Abolish Abortion, who helped draft the Louisiana measure.

Once the Supreme Court’s decision is final, Pierce said, he expects more penalties for people seeking abortions, no matter how those laws might be viewed by the public.

“Ultimately it’s not an issue of doing what’s popular. It’s an issue of doing what’s right,” Pierce said.

If Roe is overturned, “trigger laws” banning abortion would go into effect in 13 Republican-led states. Most of the recent abortion bans proposed by Republican-led state legislatures include no exceptions for rape or incest, and more GOP lawmakers and candidates are defending their support for comprehensive bans.

The latest action on abortion legislation across the states

J.D. Vance, the Republican nominee for Senate in Ohio, called rape and incest “inconvenient” but said he still did not support any exceptions to an abortion ban.

“Two wrongs don’t make a right,” Vance told Spectrum News. “The question to me is really about the baby.”

Questioned about the lack of exceptions for rape or incest, Stitt told Fox News on Sunday: “That is a human being inside the womb. … We’re going to do everything we can to protect life and love both the mother and the child. And we don’t think that killing one to protect another is the right thing to do either.”

Those exceptions are actually not the norm, said Elizabeth Nash, a principal policy associate for state issues at the Guttmacher Institute, an abortion rights think tank. Since 2013, 10 states have passed six-week abortion bans, but only one of those states, South Carolina, included exceptions for rape or incest.

Rep. Nancy Mace (R-S.C.), who supports abortion restrictions but who has spoken out in the past about being a victim of rape, said that she had pushed for those exceptions in South Carolina’s law and urged other Republicans to do the same.

“When you realize what’s happened in your life, the trauma, the emotional, the mental, the physical trauma in a woman’s life, that decision — she should make that decision with her doctor and between her and her God,” Mace said.

Arkansas Gov. Asa Hutchinson (R) has also expressed uneasiness about his state’s ban, which makes exceptions for women facing medical emergencies but not for rape or incest cases.

The debate over rape and incest exceptions has played out on the floor of several statehouses this year. As Florida considered its 15-week abortion ban in March, which passed without exceptions for rape and incest, Senate Minority Leader Lauren Book (D), delivered an emotional speech on the subject, sharing her own story of sexual assault: At age 13, she said, her nanny brought her to a party, where she was drugged and raped by several men.

She urged her colleagues to consider an amendment that would add the exceptions to the bill.

“I am begging you, for little Lauren, for me. … I am asking you to give those survivors more time to heal,” she said as she addressed the chamber.

Since the leaked Supreme Court decision, several Republican lawmakers have also signaled their willingness to restrict emergency contraception in addition to abortion, a subject legislators have rarely discussed in public.

Mississippi Gov. Tate Reeves (R) recently refused to rule out the possibility that his state would ban certain forms of contraception. Several Republican lawmakers and candidates for elected office have openly questioned Griswold v. Connecticut, the 1965 Supreme Court case that granted married couples access to contraception without government restrictions — and that undergirds Roe and other decisions.

Sen. Marsha Blackburn (R-Tenn.) has called the Griswold decision “legally unsound.” Blake Masters, a GOP Senate candidate in Arizona, says on his website he would “vote only for federal judges who understand that Roe and Griswold and Casey were wrongly decided.” Both have denied that they want to ban contraception.

The architects of the Louisiana bill, before it was scuttled late Thursday, also originally intended for it to extend to emergency contraception like Plan B, according to Pierce, the abortion opponent behind the measure.

La. Republicans weaken bill that would have charged abortion as homicide

The day after the Supreme Court draft opinion leaked, President Biden drew the line from a possible overturning of Roe v. Wade to the potential undermining of Griswold and other decisions related to privacy.

“In my view, if it becomes a law and if what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose. It goes to other basic rights: the right to marry, the right to determine a whole range of things,” Biden said on May 3. “I think the decision in Griswold was correct overruling; I think the decision in Roe was correct, because there’s a right to privacy. There can be limitations on it, but it cannot be denied.”

Within the antiabortion movement, leaders have been quick to steer the conversation away from contraception.

“That’s just not our focus,” said Kristan Hawkins, president of Students for Life of America, a leading antiabortion organization. While she would eventually support restrictions on Plan B, Hawkins said the movement needs to end abortion first.

“Our focus now in the post-Roe world is on chemical abortion,” she said, referring to abortion pills.

Abortion rights groups are using contraception as a “scare tactic,” Hawkins said. By telling people they could lose access to birth control, she added, abortion rights leaders are hoping to mobilize more people on the Supreme Court’s draft decision.

But abortion rights activists who have sought to broaden access to contraception say it is not out of the realm of possibility for Republicans to target contraception next if Roe falls.

“I don’t think folks are being alarmist,” said Power to Decide’s Fey. “We have seen a long and continued assault on contraceptive access for many years at the federal level and at the state level.”

In Texas, for example, those covered by the state Medicaid program are not allowed to receive contraception from any clinic that provides abortion care or that could be affiliated with one that does. Missouri lawmakers last year attempted to exclude coverage for IUDs and emergency contraception from their Medicaid program, an effort that ultimately failed.

Under the Trump administration, programs receiving federal funding via Title X were prohibited from even mentioning abortion, leading to hundreds of clinics leaving the program — which meant far fewer places for uninsured people to obtain contraception and other health services.

And more generally, Fey added, state policymakers and governors now frequently mischaracterize certain methods of contraception as abortifacients — either intentionally or because they are not clear on how they work.

Fey said she and other advocates will continue to fight for access to abortion and contraception, but added that it was “heartbreaking” that it took the leak of the Supreme Court draft opinion for many people to pay attention to the threats to Roe.

“I’m perpetually angry that it has to be such a fight for something so core to how people plan and build their families,” she said.

The Supreme Court is expected to issue its decision next month. Some Republicans are looking beyond the court ruling.

Idaho state Rep. Brent Crane (R), chairman of the House State Affairs Committee that oversees abortion legislation, said last week that while Idaho’s current Republican caucus did not support penalizing people who are pregnant, that may change in the future if the court overturns Roe.

“We’re going to probably see 30 new individuals come into the House of Representatives next year,” he said. “It will be interesting to see the impact that this decision will have on those individuals.”

Nebraska Gov. Pete Ricketts (R) said Sunday on CNN that if the court overturns Roe, he would call a special session of the legislature to impose a total abortion ban with no exceptions for rape or incest.

“I believe life begins at conception,” he said. “And those are babies too.”

Aaron Blake contributed to this report.

Roe v. Wade and abortion access in America

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

What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.

State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.

How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.

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