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With Kavanaugh on the Supreme Court, West Virginia and Alabama are ready to ban abortion

On Tuesday, they joined four other states whose “trigger bans” take effect if Roe v. Wade falls.

Anti-abortion protesters outside the White House on July 9, 2018
Anti-abortion protesters outside the White House on July 9, 2018.
The Washington Post/Getty Images
Anna North is a senior correspondent for Vox, where she covers American family life, work, and education. Previously, she was an editor and writer at the New York Times. She is also the author of three novels, including the New York Times bestseller Outlawed.

Alabama and West Virginia moved one step closer to banning abortion for all residents on Tuesday.

Voters in Alabama approved a measure that gives fetuses legal “personhood” status. In West Virginia, meanwhile, voters backed an initiative stating that nothing in its constitution “secures or protects a right to abortion or requires the funding of abortion.” Both measures, abortion rights advocates say, would allow state legislatures to more easily ban abortion if the Supreme Court overturns Roe v. Wade.

With the confirmation of Justice Brett Kavanaugh, many anti-abortion advocates believe they have the votes on the court necessary to dismantle the landmark 1973 decision protecting abortion rights. If that happens, state governments would have the freedom to ban their residents from terminating a pregnancy. West Virginia and Alabama just became the first states since Kavanaugh’s confirmation to prepare specifically for that possibility.

If Roe falls, abortion opponents in West Virginia and Alabama are ready

The measures in Alabama and West Virginia are both amendments to the state constitutions. In Alabama, 59 percent of voters backed Amendment 2, which gives fetuses in the state the same legal rights as a person, according to Lauren Holter at Rewire News. Specifically, the amendment adds to the state constitution the statement that “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children.” The amendment also says the constitution “does not protect the right to abortion or require the funding of abortion.”

The amendment doesn’t actually do anything while Roe remains in effect. But if the decision were to be overturned, Amendment 2 would ban abortion statewide. The measure has no exceptions for rape, incest, or a threat to the mother’s life. “We consider this amendment in its entirety an abomination against women and families,” Cindi Branham, an activist with the Alabama Reproductive Rights Advocates, told Rewire.

In West Virginia, meanwhile, about 52 percent of voters supported Amendment 1, which changes the state’s constitution to say explicitly that abortion is not protected. Opponents of the amendment say it would help lawmakers ban abortion if Roe is overturned. “If Amendment 1 passes, it paves the way for these politicians to pass other restrictive laws that could put the women in our lives in danger and leave their medical decisions in the hands of the government,” Julie Warden, a spokesperson for the reproductive rights group WVFree, told Rewire.

The amendments share similarities with “trigger bans” in four other states — Louisiana, Mississippi, North Dakota, and South Dakota — that would outlaw abortion if Roe is reversed. Meanwhile, nine states have pre-Roe abortion bans on the books, some of which could be enforced if Roe is overturned. West Virginia and Alabama both have pre-Roe bans, so the new amendments would act as an additional tool to restrict abortion if Roe falls.

More than a dozen cases that could present a challenge to Roe are one step away from the Supreme Court, meaning the court could be in a position to reconsider abortion rights within a year. Many on both sides of the abortion issue believe Kavanaugh could provide the deciding vote either to overturn Roe or weaken it in a way that seriously compromises abortion rights.

Abortion rights opponents around the country have been preparing for this moment for years. West Virginia and Alabama are the first states since Kavanaugh’s confirmation to pass laws anticipating a post-Roe future, but they may not be the last.