Issue Advisory: We Won’t Go Back: Tracking the Fight for Reproductive Justice
July 28, 2022
The long-awaited catastrophe has finally occurred. On June 24th in a 6-3 decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court struck down Roe v. Wade, stripping women’s and pregnant persons’ bodily autonomy and opening the floodgates for states like Texas, Alabama, Florida and others to impose complete restrictions on abortions without exceptions and care for the pregnant person. Thus far, full abortion bans are in effect in thirteen states, and The New York Times among other sources report that at least 21 states will prohibit or heavily restrict access to abortions. In nine other states, like Pennsylvania and Virginia, the legal status of abortion is precarious at best.
We should be clear: the overturning of Roe v. Wade has been a goal of extremists since the decision was first announced in 1973, and unfettered access to abortion has never been universal across the country—especially for low-income people and people of color. But now that Dobbs has become a reality, various states are rushing to maintain and even expand the right to abortion. On the federal level, there are longer-term efforts to codify the right to abortion, bodily autonomy, and privacy, as well as shorter-term efforts to urge the Biden administration to use any executive power it must to make a change. Here are some of the immediate actions that are taking place to protect abortion rights across the country:
President Biden’s Executive Order
On July 8th, President Biden issued an Executive Order aimed at protecting access to reproductive care services. The Executive Order comes after an influx of critique for President Biden’s inaction in protecting abortion access, apart from a speech on June 24th calling on Congress to codify abortion rights.
The Executive Order calls on the Secretary of Health and Human Services (HHS) to:
1. Safeguard access to reproductive care, including all forms of abortion and contraception;
2. Protect patients’ privacy and access to accurate information;
3. Promote the safety and security of patients, providers, and clinics; and
4. Coordinate federal efforts to protect reproductive rights and access to healthcare
You can read more about President Biden’s Executive Order here: https://www.whitehouse.gov/briefing-room/statements-releases/2022/07/08/fact-sheet-president-biden-to-sign-executive-order-protecting-access-to-reproductive-health-care-services/.
Congress on the Move
In the U.S. House of Representatives, Democrats have pushed to codify abortion rights. Two bills, the Women’s Health Protection Act of 2022—a version that had passed in the House in September 2021 but failed in the Senate—and the Ensuring Access to Abortion Act of 2022, have been introduced and passed. The revised Women’s Health Protection Act would prohibit “governmental restrictions on the provision of, and access to, abortion services” while the Ensuring Access to Abortion Act would “prohibit the interference, under color of State law, with the provision of interstate abortion services, and for other purposes.” While these bills have passed in the House, it will be impossible for them to break through the filibuster barrier to pass in the Senate.
You can track the Women’s Health Protection Act and the Ensuring Access to Abortion Act here: https://www.congress.gov/bill/117th-congress/house-bill/8296?s=1&r=1; https://www.congress.gov/bill/117th-congress/house-bill/8297/text?r=1&s=1.
Expanding Protections in State and Local Laws
In many states, the right to abortion is currently protected thanks to state and local laws. Colorado, California, Connecticut, Washington D.C., Delaware, Hawaii, Illinois, Maine, Maryland, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington all have existing state and local laws that protect abortions.
Some states go further than just protecting abortion. Nevada’s state law can only be changed via referendum, and voters have already taken action to affirm the law. California, Connecticut, Washington D.C., Delaware, Hawaii, Maryland, New Jersey, New York, and Washington have expanded or are looking to expand their state laws to protect other abortion-related areas, such as protections for providers, expanding access to providers, expanding insurance coverage, and shielding patients and providers from out-of-state lawsuits. Oregon’s state legislature has approved $15 million to support those seeking abortions.
You can read in-depth analysis of state legislation protecting and banning abortion here: https://www.guttmacher.org/state-policy.
Governors In Action
Currently, seven governors have announced initiatives to support abortion rights. New Jersey Governor Phil Murphy quickly announced his intentions to make the state a “safe haven” for those seeking abortions. In his remarks on the Dobbs decision, Governor Murphy stated that he was “prepared to take whatever action he can to secure a woman’s full bodily autonomy and expand access to reproductive freedom.” Just one week later, he signed two bills into law, extending existing abortion protections to out-of-state patients as well as in-state providers.
In Colorado, Maine, Massachusetts, Minnesota, New Mexico, North Carolina, and Rhode Island Governors Jared Polis, Janet Mills, Charlie Baker, Tim Walz, Michelle Lujan Grisham, Roy Cooper, and Dan McKee quickly issued executive orders to protect abortion patients and providers in their respective states from legislation in other states. For Colorado, Maine, Massachusetts, and Minnesota, these executive orders expand abortion rights and protect the right to bodily autonomy, in addition to existing protections such as state laws (Colorado, Maine, Massachusetts, and Rhode Island) and state court rulings (Massachusetts and Minnesota). In New Mexico and North Carolina, Governor Grisham and Cooper’s respective executive orders were especially vital in protecting the right to choose; in New Mexico, abortion is not expressly protected in neither state law nor court rulings, and in North Carolina, the state had enacted a partial ban on abortion prior to Roe.
You can read more about each of the executive orders here: https://abcnews.go.com/US/state-leaders-protect-abortion-rights/story?id=86330488.
State Courts Rule
Protections for those seeking abortions have already been expressly recognized in four state courts: Alaska, Illinois, Massachusetts, and Minnesota. However, these protections are far stronger in Illinois, Massachusetts, and Minnesota than in Alaska.
In Alaska, the right to “reproductive choice” is recognized by the state’s high court under the State Constitution. Currently, abortion rights fall under the big umbrella of reproductive choice in the state, though some experts say this may be subject to change. However, in Illinois, Massachusetts, and Minnesota, each of these states’ high courts have recognized the specific right to abortion under their respective state’s Constitution.
You can read more about state court decisions and the importance of state court rulings on abortion here: https://www.brennancenter.org/our-work/analysis-opinion/power-state-courts-securing-abortion-access-its-time-give-them-center. You can learn more about the battle for abortion rights in current state-based cases here: https://theintercept.com/2022/07/03/abortion-rights-state-constitutions/.
State Constitutional Changes
Thus far, three states are going further than others to protect access to reproductive care services. In California, New York, and Vermont, people are gearing up to include the right to abortion in State Constitutions. This process will likely look different in each of these states.
In California, voters will be going to the polls in November to adopt an amendment that protects abortion rights in their State Constitution. In New York, the state legislature is currently working to propose an amendment to their State Constitution. In Vermont, voters will be voting in November to determine whether their State Constitution should include abortion protections.
You can read more about initiatives to amend state constitutions to protect abortion rights here: https://www.npr.org/2022/06/29/1108251712/roe-v-wade-abortion-ruling-state-constitutions.
Other Noteworthy Efforts
In many states where reproductive rights have been blocked and/or abortion access is likely to be prohibited, there are still massive efforts to protect access to reproductive care. In Oklahoma and North Dakota, where nearly all abortions have been banned, abortion care providers have filed suit against many of these restrictions. In Wisconsin, where performing abortions has been turned into a felony, the governor and attorney general have filed a lawsuit to block the ban. In West Virginia, where abortions have been banned with no exceptions and providing abortions has been criminalized, the ACLU has filed a lawsuit to block its enforcement. In Idaho, where a trigger law is set to take effect later this summer, Planned Parenthood has filed a suit to stop the ban. In Ohio, where a judge has allowed for an old law restricting abortion access to go into effect, both the ACLU and Planned Parenthood have filed suit.
Furthermore, activists in various states are rallying together to defeat threats to our bodily autonomy. For instance, in Kansas, where voters will be going to the polls on August 2nd to determine whether the right to abortion should stay in the state’s constitution, abortion rights activists from the neighboring state of Missouri have gathered to ensure the right remains intact. Missourians have long looked upon Kansas as a safe haven for abortion access—a haven that may disappear in a matter of weeks. Stories such as these only depict how critical this manner is, and how restrictions on abortion in one state ultimately have impacts far wider than within the state itself.
While abortion access has been severely restricted or outright prohibited in many states, some governors and attorneys general are refusing to enforce these bans. Additionally, many state courts are temporarily blocking restrictions on abortions. In Michigan, where there is a 1931 law banning abortion, the state court has blocked the ban, and the governor and attorney general both said they would not enforce the law. In Pennsylvania, where abortion access is not expressly protected by state law, the current governor has vetoed many anti-abortion bills. In Kansas, Kentucky, Louisiana, Michigan, Montana, North Dakota, Utah, West Virginia, and Wyoming state courts have temporarily blocked or stayed efforts to fully restrict abortions.
You can read more about some of these efforts by abortion rights activists via the following links: https://www.nytimes.com/2022/06/27/us/abortion-rights-states.html.
They Won’t Stop at Roe
Ultimately, our fight for reproductive justice is important now more than ever before because the injustices will not end with the Dobbs ruling. It is not just our bodily autonomy at risk, but also our right to privacy, our guaranteed protections under the 5th and 14th Amendments, and our freedom and our liberty. We must continue fighting for the bodily autonomy of everyone—especially the Black, Brown, and Indigenous women, LGBTQ+ people, disabled people, and people of intersecting marginalized identities who have been and will continue to be impacted the most when it comes to these issues of injustice. We must continue fighting at every level in every way we can—whether that is lobbying state legislatures and Congress, voting in every election, funding abortion providers, volunteering at local abortion clinics, or even helping those seeking abortions get the help they need. And, lastly, we must continue fighting for all rights, because Dobbs and Roe are connected to so many other fundamental rights and liberties that are now at stake. We won’t go back, and we won’t back down!
Tallying Efforts to Protect Abortion, State-by-State
You can find similar interactive visuals tracking abortion rights state-by-state here:
Authored by NOW Government Relations Intern, Amanda Chen.