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Roe v. Wade is at risk, but abortion rights groups see surprising opportunities for gains

The Kavanaugh confirmation battle has Americans ready to fight for abortion access, advocates say.

Protesters demonstrate against an anti-abortion bill in Columbus, Ohio, on December 12, 2018.
Protesters demonstrate against an anti-abortion bill in Columbus, Ohio, on December 12, 2018.
Matthew Hatcher/SOPA Images/LightRocket via 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.

The most surprising thing about the abortion rights movement in 2019 is the optimism.

The potential deciding vote to overturn Roe v. Wade sits on the Supreme Court. A wave of strict anti-abortion laws are passing in states from Ohio to Mississippi. In the midst of a government shutdown, Republicans in Congress put forth a bill to shore up restrictions on federal funding for abortions (it failed).

In many ways, the outlook for abortion rights this year is as uncertain as it’s ever been. Yet reproductive rights advocates also see 2019 as an opportunity, both to educate the public about abortion rights and to pass legislation that would protect — and perhaps even expand — access for people around the country.

The confirmation of Justice Brett Kavanaugh, many believe, puts the Supreme Court on course to erase or significantly weaken the abortion protections enshrined in Roe. But the battle over his confirmation, which sparked intense outrage among many progressives, may have raised awareness of what’s at stake in the abortion fight, advocates believe.

The Kavanaugh fight creates an opportunity to “leverage the pro-choice majority in this country into some really substantial organizing,” Ilyse Hogue, president of NARAL Pro-Choice America, told Vox.

Americans’ opinions on abortion are complex and nuanced — but the majority don’t want to see Roe v. Wade overturned and believe abortion should be legal in all or most cases. NARAL believes those majorities, fired up by the Kavanaugh fight, are ready to agitate for abortion rights.

Meanwhile, the 2018 midterms have opened up opportunities. In Nevada, where Steve Sisolak just became the first Democratic governor since 1994, NARAL is supporting a law that would remove criminal penalties for abortion, which can include up to 10 years in prison if a woman tries to end her own pregnancy. In New York, where Democrats control the state Senate for the first time in ten years, a law passed on Tuesday creates exceptions to a previous ban on most abortions after 24 weeks, among other provisions. And in other states around the country, Democrats broke down Republican supermajorities, making anti-abortion legislation harder to pass and creating an opening for abortion rights legislation in future.

NARAL is looking to harness the moment by launching the Reality of Roe campaign, its largest organizing effort ever, geared toward undoing “the damage that has been done, actually pretty quietly, for decades in this country to rob women of reproductive freedom,” Hogue said. Other groups, including Planned Parenthood, are getting behind efforts to expand reproductive rights in states from New York to Missouri.

Meanwhile, anti-abortion groups are experiencing their own burst of optimism since the Kavanaugh confirmation — in October, the March for Life applauded the confirmation vote and praised “the impact his dedicated public service will have towards creating a country where every human life is valued.” Anti-abortion groups ran get-out-the-vote campaigns last year, according to NPR, and are now mobilizing behind bans like Iowa’s “heartbeat bill,” which is working its way through the courts.

But for some supporters of abortion rights, the confluence of President Trump and Kavanaugh has created not despair, but determination to effect change. “There’s real fear and frustration and anger,” Hogue said, “but that’s matched by resolve.”

After Kavanaugh, reproductive rights groups see a willingness to talk about abortion

The Kavanaugh fight was bruising for many Americans, especially for survivors of sexual misconduct who watched Christine Blasey Ford testify before the Senate that Kavanaugh had assaulted her — and then watched the Senate vote to confirm him.

But for some, the battle has also had a radicalizing effect.

“There is a real intensity to what we’re experiencing when we talk to our members,” Hogue said.

During his confirmation hearings, Kavanaugh declined to say whether he would support a repeal of Roe v. Wade. But his previous record, along with Trump’s promise to appoint anti-abortion justices, has led many on both sides of the debate to assume he would provide the deciding vote to overturn the landmark abortion decision, should an opportunity present itself.

Planned Parenthood is seeing an awareness “that as we approach the 46th anniversary of Roe v. Wade passing, we are once again in the fight of our lives,” said Dr. Leana Wen, the president of Planned Parenthood Federation of America. In the midterm elections, she added, the group saw voters energized to support candidates who back abortion rights.

“We’ve seen women, particularly women of color, rise up in record numbers,” she said. One result was a House of Representatives with “more pro-choice members than ever before.”

Meanwhile, for some voters, the Kavanaugh battle raised awareness of an issue they may not have fully understood. “Most people just don’t know what the status is where they live of their ability to access abortion for themselves or a loved one,” Hogue explained. The urgency around the Kavanaugh confirmation has “created a focus of attention that creates a phenomenal opportunity to close that knowledge gap,” she said.

NARAL aims to do that as part of its Reality of Roe campaign, educating voters in all 50 states about what abortion laws are on the books where they live — and encouraging them to “start these conversations with your state legislators.”

The 2018 elections create opportunities at the state level

Despite the threat to Roe at the Supreme Court, abortion rights advocates see opportunities in state legislatures across the country, thanks in part to Democratic gains in 2018.

After the midterm elections, Wen said, 25 governors and 19 state legislatures around the country support reproductive rights.

Those gains create an opportunity, advocates believe, to advance legislation that codifies and protects access to abortion. This includes getting laws on the books that guarantee a right to abortion in the event of a repeal of Roe, removing pre-Roe abortion bans that could take effect if the decision is overturned, and rolling back abortion restrictions in states where it’s possible to do so.

In Nevada, where Democrats flipped the governor’s mansion in 2018 and control both houses of the state legislature, NARAL is backing the Trust Nevada Women Act. The bill would remove the state’s parental notification requirement for minors seeking abortions; liberalize the state’s informed consent law, which currently requires physicians to certify patients’ marital status and explain potential emotional consequences of abortion; and remove criminal penalties that make self-induced abortion punishable by up to 10 years in prison.

The last change, supporters of the law say, would protect women like Purvi Patel, who was convicted of feticide in Indiana after prosecutors said she took abortion-inducing drugs purchased online. Her conviction was later overturned.

In New Mexico, where Democratic Gov. Michelle Lujan Grisham replaced Republican Susana Martinez this year and Democrats gained eight seats in the state House of Representatives, advocates are looking to repeal a pre-Roe law that bans abortion except in certain circumstances, such as rape. The law is unenforceable while Roe stands but could be enforced again if the decision is overturned, which is why abortion rights supporters are keen to remove it.

Meanwhile, in New York, where Democrats took control of the state Senate in 2018 for the first time in a decade, advocates have been backing the Reproductive Health Act, which passed on Tuesday. Despite its reputation as a liberal state, New York’s pre-Roe abortion law contains provisions that advocates say put women at risk, including a ban on most abortions after 24 weeks. The ban has forced patients like Erika Christensen, now a reproductive rights activist, to travel to other states and pay tens of thousands of dollars in order to terminate pregnancies where the fetus was found to be nonviable.

The Reproductive Health Act removes criminal penalties for abortion, including self-induced abortion; allows more health professionals, including nurse practitioners, to perform the procedure; and allows abortions after 24 weeks if the fetus is not viable or there is a risk to the patient’s health. “With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body,” New York Gov. Andrew Cuomo said in a statement on Tuesday.

Legislation to protect access or remove restrictions is also in the works in Rhode Island, Maryland, Massachusetts, and Maine.

Even in red states, improving abortion access might be on the table

Action at the state level will be crucial if Roe is overturned or significantly weakened, advocates say, because patients would lose federal protections for abortion rights.

Deep-red states are unlikely to pass laws protecting abortion rights in the near future, meaning their residents would be especially likely to lose access to abortion if Roe is overturned. In practice, due to a wave of new restrictions passed after 2010, many residents of states like Mississippi and Kentucky already live in a post-Roe reality, as Vox’s Michelle Garcia reported last year.

But even in red states, supporters of abortion rights see reason to be hopeful. While New York’s Reproductive Health Act won’t help patients get abortions in Mississippi, such laws could help start a national conversation, according to Elizabeth Nash, the senior state issues manager at the Guttmacher Institute.

“The idea here is to build a movement and to build momentum,” she said. “You have to start where it’s possible.”

Abortion protections at the state level can affect public opinion nationwide, which can help such legislation spread and even potentially influence future court decisions, Nash said. Even if a law like the Reproductive Health Act “doesn’t necessarily translate immediately to Louisiana and Mississippi,” it helps underscore the fact that legislative action on the issue “isn’t all just about bans,” she said. “That will filter into the courts and the political conversation writ large.”

Meanwhile, there are efforts afoot to roll back abortion restrictions in red states like Missouri, where, Wen said, advocates will be pushing to repeal a law requiring a 72-hour waiting period for an abortion.

And in North Carolina and Michigan, where Republicans still control state legislatures, Democrats in 2018 broke Republican supermajorities. That could make anti-abortion legislation harder to pass.

Reproductive rights advocates are still gearing up for a huge fight in 2019. As Wen noted, there are now more than 15 cases that, if they go before the Supreme Court, could lead to a reversal of Roe.

New abortion restrictions are still passing at a rapid clip. One of the most recent, in Ohio, banned the most common method of second-trimester abortion.

And if abortion rights supporters have been radicalized by Kavanaugh’s confirmation, some anti-abortion advocates have been emboldened as well. They have on their side President Trump and Vice President Mike Pence, both of whom spoke at the March for Life on Friday.

“When we look into the eyes of a newborn child, we see the beauty and the human soul and the majesty of God’s creation. We know that every life has meaning,” said Trump by video feed at the march, according to the Washington Post. He then listed a series of anti-abortion actions his administration has taken.

Despite the obstacles, though, reproductive rights advocates say they and voters around the country are ready for what’s ahead.

Threats to abortion rights in a Trump presidency add insult to injury for many voters, especially women, Hogue said. They’re “the salt in the wound of the man who ran and won on misogyny, who has taken every opportunity he can to insult women,” she explained. “That combination creates a groundswell of support for fighting back.”

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