Even before Alabama and Georgia approved laws that severely restrict abortions, it had not been a good year for abortion-rights advocates. Bills to protect abortion rights and access had stalled across the country — even in states like New Mexico and Illinois, where Democrats had newfound control of both the legislature and the governor’s mansions. In Virginia, an effort to lift restrictions went down in flames amid claims that its supporters were promoting infanticide.
But the new laws in Alabama and Georgia have helped push some blue states to protect and even expand their residents’ abortion rights. In late May, the bill in Illinois — which, among other things, established abortion as a fundamental right in the state — was released from legislative limbo and swiftly passed in both chambers. The Vermont legislature passed a bill along the same lines, and in Nevada, a new law removed some abortion restrictions, including a requirement that women be told about the “physical and emotional implications” of having the procedure.
This has been a rare flurry of legislative successes for abortion-rights advocates. About one-quarter of the state-level provisions that have protected and expanded abortion rights since 2011 have passed in the past two weeks, according to a FiveThirtyEight analysis of data from the Guttmacher Institute, a research organization that supports legal abortion. That dramatic increase isn’t a sign, though, that lots of states are moving to protect abortion — at least, not yet. For one thing, many of those provisions were bundled into a single bill, which the governor of Illinois is expected to sign soon. Moreover, the recent increase is mostly a testament to just how little state-level activity there’s been on this issue over the past eight years. Democrats have tried to protect abortion very differently than Republicans have tried to restrict it.
According to Guttmacher’s data, states have enacted 42 provisions protecting or expanding abortion rights since 2011. (This includes provisions from two laws in Illinois and Vermont that are awaiting the governor’s signature. In both cases, the governor is expected to enact the law.) That is far fewer than the hundreds of restrictions that states have passed in the same time span. These protective efforts fall into three basic categories: lifting preexisting restrictions on abortion, establishing the right to abortion in state law, and expanding access by making it easier or less expensive to get an abortion.1
The policies in the first category, which axe restrictions without adding new protections, account for almost two-thirds of the provisions enacted since 2011. Some of the repealed restrictions were already not being enforced or had been blocked by the courts, said Elizabeth Nash, senior state issues manager at the Guttmacher Institute, and removing them from the books amounted to a kind of cleanup effort. Last year, for example, Massachusetts repealed a ban on “procuring a miscarriage” that dated to 1845. Other states, like Idaho and Louisiana, were forced by courts to claw back restrictions, or made minor adjustments that abortion-rights advocates viewed as an improvement but didn’t have significantly affect abortion access in the state.
Overall, this data suggests Democrats have mostly been playing defense at the state level until now. The abortion protections that have made it through state legislatures have often had less of a direct impact than the restrictions that many states have passed, which make it significantly harder to get an abortion in certain parts of the country. More proactive measures — such as provisions that protect clinic access, expand insurance coverage for abortion, or widen the range of health care professionals who can perform abortions — have been passed less often. Until recently, blue states have mainly removed restrictions; now, more states are working to ensure that abortion will continue to be legal within their borders if Roe v. Wade is overturned.
So why have we seen so much protesting from pro-abortion-rights activists in the last few weeks, but so little pro-abortion-rights legislation in the last few years? Part of the issue was that some state legislators may not have wanted to risk a controversy when the right to an abortion seemed safer than it does now. “The attitude for a long time was that abortion was legal and it was going to stay legal, and there wasn’t really a need to do more,” Nash said. Joshua Wilson, a political science professor at the University of Denver, said that as long as Roe didn’t seem to be seriously threatened, abortion-rights activists mostly focused on fighting restrictions in court (which they’re continuing to do) rather than pursuing new legislation. That said, some states — like Maryland and Maine — did pass laws affirming abortion rights in the early 1990s when it seemed like Roe was under threat.
In the past, Democratic politicians have been more tentative on abortion — perhaps because public opinion on the issue can be difficult to navigate. Over the years, Republicans’ and Democrats’ positions on the legality of abortion have become more polarized, but although Democratic support for allowing the procedure under any circumstances has grown, there’s still some disagreement about when in a pregnancy it should be permitted. A Pew poll conducted in 2018 found that more than three-quarters of Democrats believe abortion should be legal in all or most circumstances, and a PRRI poll from the same year found that 73 percent of Democrats say Roe v. Wade was correctly decided by the Supreme Court and should be upheld. But according to a 2018 Gallup poll, less than half of Democrats support legal abortion in the second trimester. And this year, Democratic lawmakers in heavily Catholic states like New Mexico and Rhode Island have cited their faith as they voted against bills to repeal old abortion restrictions or protect abortion rights.
“Public opinion on abortion can be hard to pin down because Americans are supportive of abortion in some cases and not in others,” said Rebecca Kreitzer, a professor of public policy at the University of North Carolina-Chapel Hill. The recent near-total bans on abortion are a notable exception, but many abortion restrictions are framed as regulations to protect the health and safety of people seeking the procedure — a strategy, according to Kreitzer, that “made them more politically palatable.” Convincing Americans to expand access to a procedure that many were ambivalent about, meanwhile, remained a tall order — especially when the constitutional right to abortion didn’t seem to be threatened.
But abortion rights are clearly threatened now. Many observers believe the current Supreme Court could be willing to roll back longstanding precedents, which means challenges to Roe v. Wade may have a better chance of success now than they have in the past. And that threat could make it easier for Democrats to push for more protections or even try to expand abortion access. “Abortion rights groups tend to do better in state legislatures when there’s an existential threat to Roe,” said Mary Ziegler, a legal historian at Florida State University and the author of “After Roe: The Lost History of the Abortion Debate.”
There are already some signs that abortion may be mobilizing more Democrats than it did in the past. For example, as FiveThirtyEight contributor Daniel Cox wrote last year, Democrats are increasingly likely to say that abortion is an important voting issue, and they’re also more likely than they were even a few years ago to say that abortion is an important issue to them personally. These findings predate the most recent bans on abortion and Justice Brett Kavanaugh’s confirmation to the Supreme Court, where he replaced Anthony Kennedy, the longtime swing justice on abortion — and those developments could galvanize even more Democrats around this issue. A CNN poll released last week found that 29 percent of Democrats say they would only vote for a candidate who shares their view on abortion.
Pushing too far in the other direction could still backfire. Ziad Munson, a sociologist at Lehigh University who studies the pro-choice and pro-life movements, called New York’s recent law loosening restrictions on abortions late in pregnancy a “cautionary tale.” Although the law passed, the conversation about its merits quickly became mired in a debate over the ethics of third-trimester abortion, even though the bill mostly just brought New York’s law in line with those already on the books in other states. And that debate may have contributed to the demise of a similar bill in Virginia.
Abortion-rights advocates could always take a page out of their opponents’ book and adopt a more incremental strategy. For example, although Illinois’s law was largely designed to preserve the status quo, it also required insurance companies to cover abortion under their plans — a seemingly small tweak that could make the procedure much more affordable. Similarly, Maine legislators are currently considering a law that would expand the range of medical professionals who are allowed to perform abortions, potentially making it easier for patients in rural areas to access the procedure. But it’s not a slam dunk — even in Hawaii, where Democrats have a legislative supermajority, a similar proposal was tabled earlier this year.
The biggest question for abortion-rights advocates — who are working with some momentum on their side but with Roe under threat — is how much of a risk they want to take. In terms of cold political calculus, working to protect the status quo could be the most expedient move, at least in the short term. “People might care about gaining some new rights,” Ziegler said. “But they’ll be much more worried about losing what they already have.”