The New Landscape of the Abortion Fight
The Supreme Court’s reversal of the 50-year-old decision in Roe v. Wade transformed the debate and politics around abortion in the United States, shifting battles to state courts and legislatures — and galvanizing a fresh wave of voters in the midterm elections who turned out more forcefully than ever to make abortion rights a winning issue.
While the terms of the abortion conflict had been set for decades, the results of the elections so closely following the court’s decision now have both sides re-evaluating their strengths, weaknesses and strategies. Heading into the new legislative sessions next year, supporters and opponents of abortion rights are girding for fresh combat, with new ground rules, new opponents and new battlefronts.
Anti-abortion groups are pulling back from ballot initiatives as a way to restrict abortion, having failed with those measures in Kansas, Kentucky and Montana. Instead, they’re pushing to reinforce abortion restrictions where they’ve had success or hold the majority: in sympathetic court jurisdictions and Republican-controlled legislatures.
Abortion rights advocates are coming out of the midterms with momentum. But for all their victories, they face the steeper challenge. With abortion now illegal or inaccessible in roughly half of the country, they have to keep their supporters energized for a long fight.
After winning six out of six ballot initiatives this year, abortion rights supporters are pressing for more, especially in states such as Ohio and Missouri where the legislatures are gerrymandered and staunchly anti-abortion. Yet ballot initiatives aren’t an option in every state.
The path to restoring abortion rights still runs largely through state legislatures, where it has traditionally been harder to mobilize voters and donors.
“Now, more than ever, I think our supporters, and voters in general, feel they have a role to play in protecting abortion access,” said Sarah Standiford, the national campaigns director for Planned Parenthood. When the draft Supreme Court opinion overturning the constitutional right to abortion leaked in May, she said, many supporters felt there was nothing they could do. Now, she said, “the imperative is to really engage individuals in a way that they not only feel less helpless but are less helpless. The challenge and opportunity there is to continue to ensure that there’s a path for every person to take action.”
But the anti-abortion side is not stepping back from the fight either. Last month, anti-abortion groups filed suit in federal court in Texas, seeking to overturn the Food and Drug Administration’s approval of abortion pills.
At a meeting of the National Association of Christian Lawmakers outside Dallas after the election, Sue Liebel, the director of state affairs for Susan B. Anthony Pro-Life America, an anti-abortion group, steered the lawmakers in the audience away from more ballot initiatives. Instead, she encouraged them to focus their energy in upcoming legislative sessions on making it harder for doctors to provide abortion pills, and on establishing the strictest possible gestational limits on the procedure.
Understand the U.S. Supreme Court’s New Term
A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:
Legitimacy concerns swirl. The court’s aggressive approach has led its approval ratings to plummet. In a recent Gallup poll, 58 percent of Americans said they disapproved of the job the Supreme Court was doing. Such findings seem to have prompted several justices to discuss whether the court’s legitimacy was in peril in recent public appearances.
Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.
Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.
Election laws. The court heard arguments in a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions. In a rare plea, state chief justices urged the court to reject that approach.
Discrimination against gay couples. The justices heard an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.
“It’s time to go,” she said. “You can be as ambitious as possible.”
Tom Oliverson, a Republican member of the Texas House of Representatives, suggested restricting health care tax deductions for companies that help employees access abortion, including through travel reimbursement — or what he called “abortion tourism”— in states where the procedure is illegal.
Mrs. Liebel recognized a new state of play after the midterms, noting that the end of Roe v. Wade had brought a new cohort of defenders of abortion rights that anti-abortion groups were not used to having to counteract, in particular doctors and representatives of hospitals, who publicly complained that new state prohibitions on abortion were interfering with proper medical care.
Last month, the American Medical Association, an historically conservative group, adopted new policies opposing restrictions on abortion, including new ethical guidance explicitly allowing physicians to perform the procedure in keeping with “good medical practice” even in states that ban it.
“It’s easy when we’re opposing Planned Parenthood or the ACLU,” Mrs. Liebel said at the event.
But James Bopp Jr., the longtime general counsel of the National Right to Life Committee, minimized the importance of abortion in the midterms. A net gain in people voting “doesn’t mean a change in the abortion issue,” he said.
“In every state I’ve seen — and I’ve seen 30 or 40 — the Republicans picked up seats in their statehouse and state senate,” he added. “So, if it was true there was some kind of abortion rights wave, it would have caught all these people. There’s no real evidence that there was a net benefit, or you would have seen the opposite of victories for Republicans in every state.”
Then there was what Mr. Bopp called the “enormous net benefit” to the anti-abortion side: Republicans took control of the U.S. House of Representatives — if only narrowly. Had Democrats held their majority, they would have continued to try to pass the Women’s Health Protection Act, which would guarantee a nationwide right to abortion. “They were going to go for the stake in the heart,” Mr. Bopp said.
He expects that Republican-controlled legislatures will continue to pass laws like one adopted in Indiana this summer banning abortion except in cases of rape or incest, or to save the life of the pregnant woman. And Republicans in the House will press for a nationwide ban on abortion.
Democrats did take the Statehouse for the first time in 40 years in Michigan, where voters passed a ballot initiative enshrining a right to abortion in the state’s Constitution. The new Democratic majority plans to repeal a 1931 state law, still on the books, that makes abortion a felony for patients and doctors. (The law had been invalid as long as Roe was in effect — so was revived by the Supreme Court’s decision.)
Even more unexpected, Democrats also took control of one legislative chamber in Pennsylvania, where voters said abortion was the biggest factor driving them to vote, even more so than the economy. The Republican-led legislature had been planning to put a measure on the ballot next May that would deny a right to abortion; as a result of the midterms, that measure will almost certainly not appear on the ballot.
And in Kentucky, State Supreme Court justices hearing a challenge by the ACLU to the state’s abortion bans suggested that they would be influenced by voters’ recent rejection of a ballot initiative for a constitutional amendment asserting there is no right to abortion. “It strikes me that a ballot initiative is the purest form of democracy,” said Deputy Chief Justice Lisabeth Hughes.
For now, however, the midterms did little to make abortion more available to the 34 million women of reproductive age who live in states that have prohibited it since Roe was overturned. Additional states have restricted it early in pregnancy. Ms. Standiford, of Planned Parenthood, said: “Before the election, there were 18 states with abortion bans in effect; after the election, there were 18 states with abortion bans in effect.”
The biggest immediate shift may have been in the politics of abortion. While an overwhelming majority of Americans has long told pollsters that the choice to have an abortion should be left to a woman rather than to the law, the issue was long considered a drag on candidates, so morally complex as to be unwinnable. Those who opposed abortion were more likely than abortion rights supporters to make the issue the deciding factor in their vote.
The decision overturning Roe and the midterms changed that dynamic. A poll in September by the Public Religion Research Institute found that 24 percent of Americans said they would vote only for a candidate who shared their view on abortion, up from 18 percent a decade ago. The change was biggest among Democrats, who tend to support abortion rights: 35 percent said they’d vote only for a candidate who shared their position on abortion, double the percentage who said the same thing two years earlier. Among Republicans, who are more likely to oppose abortion, just 21 percent said they would vote only for a candidate who supported their position, down from 32 percent in 2020.
More on the U.S. Supreme Court
- Election Case: The Supreme Court seemed splintered about whether to adopt a legal theory that would radically reshape how federal elections are conducted. Here are some key points in the debate.
- A Clash of Rights: In a case over gay rights and free speech, the justices appear ready to rule in favor of a Christian web designer who says she has a First Amendment right to refuse service to same-sex couples.
- A Secret Influence Campaign: An anti-abortion activist led a secretive, yearslong effort to influence the justices of the Supreme Court. This is the story of the Rev. Rob Schenck.
- Another Breach: Years before the leaked draft opinion overturning Roe v. Wade, Mr. Schenck said he had been tipped off to the outcome of a landmark contraception case.
In exit polls after the midterms, voters across the political spectrum declared abortion rights their leading issue.
“Resist the urge to view this as a unique, one-off election midterm story, and instead see it for what it is, which is part of an upward trajectory of a powerful movement,” Andrea Miller, the president of the National Institute for Reproductive Health, which supports abortion rights, urged reporters on a conference call last month. “The tides are turning.”
With the failure of anti-abortion ballot measures in red states like Montana and Kentucky, some abortion rights activists are arguing to go more on the offensive, with measures like the one in Michigan that establishes a right to reproductive freedom in the state’s Constitution.
“Ballot measures are at their very most effective when there is a major gulf between what voters want and what their elected officials are doing,” said Kelly Hall, the executive director of the Fairness Project, which helps campaigns for progressive ballot initiatives in red and purple states. “Abortion is squarely in that gulf in almost every place across the country.”
But ballot initiatives are not a guarantee, or a solution, everywhere. Seventeen states allow citizens to initiate ballot measures, and that figure includes several blue states that have already protected abortion rights. There are about ten states that ban abortion and allow citizen initiatives. “That narrows the map,” Ms. Hall said.
Skye Perryman, the president of Democracy Forward, which is representing doctors fighting anti-abortion laws, said she expected to see more proxy battles on abortion, with anti-abortion groups pushing legislation in red states to make initiating ballot measures harder and voting more difficult. Republicans in the Ohio legislature have already said they will make such a law a top priority next year.
Abortion rights groups have filed 34 lawsuits in 19 states against abortion bans that took effect after Roe was overturned. Many of those seek to establish a right to abortion in state constitutions, now that the Constitution no longer protects it.
Nancy Northup, the president of the Center for Reproductive Rights, which has filed many of those suits, said the litigation would continue, by necessity. But the success of the ballot initiatives in California, Michigan and Vermont establishing such a right, she said, was “huge, as a substantive law issue” and would put pressure on other states.
“We’re done with the conversation that went on for 50 years about whether Roe was rightly decided, about whether there’s a right to privacy,” she said. The amendment in Michigan, for instance, explicitly defines a right to reproductive freedom: “including the right to make all decisions about pregnancy and abortion.”
“People living in these states are going to be used to the concept of reproductive freedom in their state law that nobody can argue with, because the language is there,” Ms. Northup said. “This now sets the new standard, and advocates and people who support reproductive autonomy in other states are going to say, ‘Well, why not my constitution?’”
Ruth Graham contributed to this story.
