The Washington PostDemocracy Dies in Darkness

Abortion battles intensify in the states ahead of court ruling expected to undermine Roe v. Wade

Antiabortion protestor Rose Ann Schienle holds a sign while demonstrating outside of the Colorado Springs Westside Health Center on Feb. 11, 2017. (Marc Piscotty/Getty Images)

Activists and local lawmakers in both parties are rapidly preparing for the Supreme Court to curtail federally guaranteed abortion rights in coming months, launching strategies for imposing new restrictions and protections in anticipation of the moment when individual states would have greater power to determine the future of reproductive laws in America.

The Susan B. Anthony List, a prominent antiabortion group, has already drafted a three-tier list of “State Prospects for Pro-Life Laws Post-Roe,” which identifies priorities for legal and legislative actions and messaging campaigns in states where they feel they will need to play defense as well as those where they plan to push for new restrictions. As many as 21 states could swiftly impose bans or new limits on abortion, depending on what the court decides.

On the opposite end of the spectrum, Democrats in Colorado are planning to introduce legislation that would codify abortion rights. In Michigan, where they do not control the state legislature, they are pushing a bill that would repeal a 90-year-old abortion ban that could take effect once again. The abortion rights group NARAL is aiming to push for expanded access to abortion in liberal states, anticipating they will be flooded with people from conservative states where the practice will be severely limited.

The flurry of activity reflects a growing belief on both sides of a long-heated debate that it is simply a matter of time before the Supreme Court issues a decision that would undermine, if not overrule, Roe v. Wade, the 1973 ruling granting a constitutional right to abortion and preventing states from prohibiting abortions before fetal viability.

At a Wednesday hearing, the court’s conservative majority signaled it was prepared to uphold a Mississippi abortion law that would undermine Roe, sending both sides scrambling to prepare for a decision that could arrive next summer, just ahead of the November midterm elections.

Now, normally low-profile state legislative races and less-prominent gubernatorial contests suddenly hold the potential to become national flash points in the polarizing debate, while state legislative activity will become more significant in shaping abortion laws. Advocates on both sides say they anticipate a grueling, expensive and fierce fight.

“There will be an explosion of investment in local and state races, without question,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List.

Kristin Ford, NARAL’s vice president of communications and research, predicted the abortion battle will be fought “city by city, county by county, state by state, region by region.”

Democrats hope that the growing attention to the debate will galvanize voters to tune into what their state legislatures are doing and take a greater interest in state races and help counteract anger with the party that is spreading as its leaders in Washington struggle to enact a domestic agenda and President Biden’s approval ratings have declined sharply. Republican strategists argued that voters will be more attuned to economic and education issues, with one arguing that Democrats were miscalculating by leaning heavily into a divisive issue.

Some Democrats acknowledged that Republicans have been generally been more effective at running in local contests in recent years, but voiced optimism that trend could change. This year has seen the largest increase in statewide restrictions, making abortion access more tenuous and giving power to Democrats’ longtime warnings that reproductive rights are under serious threat, activists and officials said.

In Michigan, a Democratic bill that would overturn a 1931 abortion ban that would take effect if Roe was overruled. Michigan has a Democratic governor who faces reelection and supports the measure. But Republicans control the state legislature, giving the bill almost impossible odds of becoming law.

“There’s a ton of work. Unfortunately, we are at the mercy of a Republican legislature — at the moment,” said Democratic state Rep. Laurie Pohutsky, who is sponsoring a bill to expand abortion protections. “We understand we are not going to move any of the bills that we introduced to keep abortion, safe and accessible for those who live in Michigan. That’s why we are turning to the election in 2022.”

Many Democrats hope such scenarios will motivate voters to elect more of their candidates. “The issue is mobilizing right now. It is certainly going to bring energy and bring a focus to the 2022 election, I think we can say that for certain,” said Heather Williams, executive director of the Democratic Legislative Campaign Committee.

Beyond the campaign efforts, Democrats are also taking steps in the interim to brace for what could be a jarring shake-up of abortion law. “We need to be extremely proactive in expanding abortion access in traditionally blue states and defending it in battleground states,” said Jennifer Driver, senior director of reproductive rights at the State Innovation Exchange, which works with liberal state legislators across the country.

This week, Colorado state lawmakers touted their plans to introduce a bill to put in protections for abortion access in their session next month.

“It’s really important because it’s one of the few places where abortion care is available in a part of the country where we see states have adopted abortions restrictions — Montana, Wyoming, North and South Dakota — and where people have to cross very large states to obtain care,” said Elizabeth Nash, state policy expert at the Guttmacher Institute, a pro-abortion rights think tank.

Ford said NARAL is aiming to create regional hubs in states where abortion rights are not likely to be rolled back, expand telehealth access and raise money to help pay for resources such as gas money and child care. The goal is to help accommodate people in states that are expected to become more restrictive. She also mentioned preserving access to medications that can be used to induce abortions in the earliest stages of a pregnancy, which some pro-abortion rights activists fear will be further diminished.

“How do you make it as manageable as possible?” she said.

Abortion also appears likely to be a significant factor in many gubernatorial races. In Georgia, Democrat Stacey Abrams, a rising national star and staunch supporter of abortion rights, said this week that she intends to seek a rematch against antiabortion Gov. Brian Kemp, a Republican.

The issue has also caught the attention of state attorneys general. In three of the states where the 2020 presidential election was decided by single digits — Arizona, Michigan and Wisconsin — laws passed as far back as 1849 would ban nearly all abortions automatically if Roe’s protections disappeared.

“That would leave us in a situation of significant uncertainty,” said Wisconsin Attorney General Josh Kaul, a Democrat seeking reelection next year. “As long as I’m in this office, it would not be investigating or prosecuting violations of the 1849 abortion law. But different district attorneys around the state could take a different perspective.”

Like Kaul, Michigan Attorney General Dana Nessel said that she would use prosecutorial discretion and would not pursue abortion cases if the old ban went into effect. “By vigorously prosecuting this law,” Nessel said, “I’d be killing women.”

But Republicans running for attorney general in swing states said that they would follow the law, and were hopeful that the court would expand the limits their states could place on abortion.

“I will enforce and defend the law as passed by the legislature and signed into law,” said Eric Toney, a Republican candidate challenging Kaul in Wisconsin. “I’ll support and help lead efforts to ensure Wisconsin’s abortion laws are followed, if the Supreme Court allows for enforcement.”

Toney was been endorsed by Wisconsin Right to Life, one of many groups across the states that have advocated “trigger” laws to go into effect if Roe were to fall. Heather Weininger, the group’s executive director, said that a decision that allowed the old ban to go into place would be welcome, and antiabortion advocates in the state, where Republicans control the state legislature, could focus on adding antiabortion language to the state constitution.

“We’ve had a law on the books since 1849,” Weininger said. “We just want that enforced.”

Dannenfelser said her organization intends to work with state leaders in imposing new abortion restrictions after the Supreme Court decision. The group also plans to work to shore up supportive candidates for local office. A strategy memo the group shared with The Washington Post, which it said it distributed to governors and GOP leaders, advises antiabortion allies to use four tactics to counter expected Democratic attempts to go on offense after the Supreme Court decision is issued. Among the recommendations: “Focus on the humanity of the unborn child at 15 weeks,” while at the same time emphasizing that the likely outcome of the case will not amount to a nationwide ban on abortion.

Antiabortion advocates acknowledged that the opposition will likely be more energized than before, but expressed confidence that the Supreme Court case would also fire up their side.

In Kansas, state Sen. Molly Baumgardner (R) sponsored a ballot initiative that will come before voters next August that would overturn a 2019 state Supreme Court ruling protecting abortion rights.

“It doesn’t fit,” said Baumgardner in a phone interview. “Over the years, there were protections for the abortion industry that refuses to self-regulate itself. In Kansas a minor can’t get a piercing, but a minor can get an abortion. Regardless of the SCOTUS decision, we feel our state Supreme Court is not in keeping with Kansas values. We feel it’s a state decision.”

Republicans in other states are also pushing new restrictions. In Missouri, state Rep. Mary Elizabeth Coleman, a Republican who represents parts of Jefferson and St. Louis counties, is the architect of the state’s “heartbeat bill,” which would ban abortion as early as eight weeks. That bill is now working its way through the courts.

“No matter what the Supreme Court says, we have a focus on electing pro-life state leaders,” Coleman said. “We want to make abortion illegal but also unthinkable.”