Why States Rushed to Protect Abortion in 2019
Conservatives enacted aggressive abortion restrictions in 2019, but a record number of states fought back
A woman’s right to choose was under siege in 2019. Emboldened by the new conservative majority in the U.S. Supreme Court, anti-abortion advocates entered a new phase of their fight, enacting aggressive measures in at least 17 states that ranged from banning and criminalizing abortion outright to forcing doctors to offer false information about “reversing” the procedure.
But these attacks also led to a growing number of abortion rights advocates and lawmakers to successfully push for measures protecting access to abortion care at the state level.
The number of measures protecting or expanding abortion care enacted went from 5 in 2018 to 36 in 2019, according to the Guttmacher Institute. Overall, more protections were enacted this year alone than in the entire preceding decade, the organization said.
“We had a record of nine states that advanced legislation that protects abortion rights, expands abortion access, or does both. That’s more states doing that in a single year than ever in our nation’s history,” Andrea Miller, president of the National Institute for Reproductive Health (NIRH), told GEN.
The push to codify abortion rights at the state level has a lot to do with advocates’ fears that Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion nationwide, won’t survive for much longer. After all, anti-abortion lawmakers have made it pretty clear that the goal of the majority of the measures they advanced this year is to set up a legal challenge that can eventually overturn Roe. Now abortion-friendly states are taking matters into their own hands to make sure the procedure remains legal and accessible in a post-Roe world.
The flurry of abortion rights legislating was made possible by a recent leftward shift in state governments, particularly after the Democratic wins of the 2018 midterm election. At the beginning of the decade, conservatives dominated a majority of state legislatures and governorships; they have since lost ground. “We didn’t see the pendulum swing back for many years, but we’re starting to see that now. [For example,] in the past two election cycles, Virginia’s state legislature went from solidly conservative and Republican-controlled to not so solidly Republican-controlled and now is Democrat-controlled. In four years, you went from one side to the other,” Elizabeth Nash, senior state issues manager at Guttmacher, told GEN. “There are different priorities put in place as these legislatures change.”
A state that stands out because of what it didn’t do in 2019 is Texas. The Lone Star state has been at the center of some of the major anti-abortion laws of the decade, including House Bill 2, which led to the closure of half the abortion clinics in the state and was eventually struck down by the Supreme Court in 2016. This year, Republican-controlled legislatures in nine states passed unconstitutional regulations prohibiting abortion care before viability — including Alabama’s near-total ban on abortion. But Texas’ own ban, which criminalized the procedure, failed to pass this year and legislators didn’t push for similar measures. “You might have thought that Texas would be in the [“fetal heartbeat” bans] conversation,” Nash said, “but it wasn’t because of the shifts in the state legislature.”
The fight for protecting access to abortion care in several states was clearly a direct response to the unprecedented wave of restrictions. Four states — New York, Illinois, Rhode Island, and Vermont — codified abortion rights in their state codes. In Maine, two new laws were enacted. The first one allows medical professionals who are not doctors — such as physician assistants and advanced practice nurses — to offer abortion care. The second measure requires the state’s Medicaid program and private health insurance plans to cover the procedure. California became the first state to require that public colleges offer abortion medication on campus.
New York also decriminalized abortion, and allowed for pregnancies to be terminated after 24 weeks of gestation if the patient’s life is in danger or the fetus is not viable. Illinois took similar steps, repealing a dormant law from 1975 that criminalized health providers offering the procedure. The majority-women state Legislature in Nevada advanced legislation to decriminalize self-managed abortion. They also repealed a measure requiring doctors to tell patients about the “physical and emotional implications” of the procedure and one requiring providers to determine someone’s age and marital status before offering abortion care. New Jersey lawmakers passed a measure protecting the confidentiality of home addresses of reproductive health providers’ employees and patients, while Hawaii legislators prohibited workplace discrimination against employees based on their reproductive health care decisions, including abortion.
States were proactive with legislation, but pro-abortion rights governors also played a role in protecting patients’ rights. “Five governors vetoed abortion restrictions [this year],” Nash said. “That doesn’t necessarily expand access, but it’s certainly trying to hold the dam up a little bit and stop additional restrictions from becoming law. We haven’t seen that kind of action in a long time.”
These efforts will likely continue to reshape the landscape of access to abortion care across the country. Abortion deserts — i.e. places where patients are forced to travel 100 miles or more to access this type of care — are prevalent everywhere in the United States but the Northeast. This year’s wins for the pro- and anti-abortion movements means the West and Northeast areas have a stronger infrastructure for access to abortion while patients in the South, Midwest, and the Great Plains areas are likely to face more obstacles when attempting to obtain care.
“States always have been and always will be the place where the fundamental decision about whether and how people can make reproductive decisions, particularly abortion, and whether they’ll be able to access that care, are determined,” Miller, from NIRH, said. “The Supreme Court sets the floor. They determine how low states can go. But the Supreme Court does not set the ceiling. It does not say what states could do to make it possible to have equitable, affordable access to the full-range of reproductive services, including abortion.”
As early as June, the court will decide the first major abortion rights decision of the Trump era.
The measure at the center of June Medical Services v. Gee is a Louisiana law from 2014 requiring abortion providers to have hospital admitting privileges. The main issue is that the law is nearly identical to HB2, the Texas measure that was struck down in 2016 when the Supreme Court decided Whole Woman’s Health v. Hellerstedt. That the court could reverse its own precedent just four years after the fact underscores the urgency of states wanting to protect abortion care. With the threat of a post-Roe world hanging over their heads, the trend of pro-abortion rights states rushing to expand access to abortion care will surely continue in 2020.