The Danger Ahead: Early Indicators Show States Will Be the Main Abortion Battleground in 2021
State lawmakers entered 2021 with numerous urgent priorities: the ongoing COVID-19 pandemic and the vaccination rollout, a struggling economy and the resulting reduced tax revenues and budgets, efforts to address systemic racism across multiple issues from health care to criminal justice reform, post-census political redistricting and shoring up the institutions of democracy, among others. Despite all of these challenges, legislators have also made time to focus on restricting abortion rights. In the first two months of the year, eight abortion restrictions and bans have been enacted:
- South Carolina ban on abortion as early as six weeks of pregnancy (this ban has been temporarily blocked in court)
- Kentucky law that grants additional authority to the state’s attorney general to penalize and close abortion clinics
- Arkansas program with two restrictions—it requires those seeking an abortion to call a state-supported hotline for information on pregnancy resources and services; abortion providers are also required to document the hotline call in the patient’s medical records and with the state
- Ohio ban on the use of telemedicine for medication abortion
Kentucky and South Dakota laws that penalize physicians for not taking medically unnecessary actions for a fetus, despite the fact that both states have existing laws providing legal protections for a fetus delivered after an abortion
- Kansas initiative for the August 2022 ballot that, if approved by voters, would amend the Kansas constitution to explicitly exclude abortion rights
This is highly unusual: In the past decade, there has been only one year with this level of action so early in state legislative sessions. That was in 2017, when five abortion restrictions were enacted by the end of February. In 2019, a year that saw many states focus on abortion bans, only one measure was enacted in the first two months—a "trigger ban" in Arkansas that allows the state to automatically ban abortion if the U.S. Supreme Court overturns federal constitutional protections in Roe v. Wade.
The 2021 legislative session is also shaping up to be reminiscent of the 2011 session, which had the highest number of abortion restrictions enacted in any year since Roe was decided in 1973. As in 2011, the November 2020 state-level elections resulted in solidifying Republican control in many state legislatures. Also like 2011, state legislators are currently confronting difficult and complicated issues: In 2011, the country was in the midst of the Great Recession and accompanying state budget crises; in 2021, states have even more on their legislative agendas.
The attention on abortion should not come as a surprise. In just four years, then-President Trump confirmed more than 200 federal judges—nearly three in 10 of all active federal judges in the United States, and three of the nine justices on the U.S. Supreme Court. The confirmation of Justice Amy Coney Barrett in October 2020 cemented a 6-3 conservative and antiabortion majority. Like-minded state policymakers are eager to test the limits of what the new majority might allow on abortion bans and restrictions, and have been laying the groundwork for a day when federal constitutional protections for abortion are weakened or eliminated entirely.
A Surge in New Bills
So far in 2021, antiabortion lawmakers have been introducing new legislation in overwhelming numbers: 384 antiabortion provisions introduced in 43 states through February. These provisions come in many types and differ in their potential impact.
Abortion bans: These are designed to directly challenge Roe v. Wade and the U.S. constitutional right to abortion. Abortion bans include total bans, gestational age bans, bans on methods for providing procedural and medication abortion, bans on the reason for an abortion and bans that would take effect if Roe were overturned. So far this year, 107 abortion bans have been introduced, including 19 total abortion bans in 13 states. The South Carolina six-week abortion ban has been enacted into law, and other bans are moving through legislatures in Idaho, North Dakota and Oklahoma.
Abortion restrictions: While abortion bans often garner the most attention because of their broad potential impact, various types of restrictions can also make abortion inaccessible, particularly when patients face multiple restrictions that together create logistical, legal and financial barriers to care. Individually and together, restrictions violate the U.S. Supreme Court’s undue burden standard that prohibits states from enforcing restrictions that place an obstacle in the way of a patient needing an abortion. However, in June, Supreme Court Chief Justice John Roberts indicated that he would welcome additional restrictions on abortion by state legislators as a way to undermine or eviscerate the Court’s current undue burden standard that protects abortion rights.
Provider regulations: Other antiabortion provisions are designed to undermine constitutional protections by shutting down abortion providers. Measures to burden abortion clinics with unnecessary regulations have been introduced in 12 states and other restrictions enacted in Arkansas and Kentucky, with more legislation moving in Arizona, Indiana and Oklahoma.
Interference: Still other antiabortion measures try to undermine constitutional protections by interfering in the practice of medicine and the patient-provider relationship. More than 50 measures that would require inaccurate or misleading counseling, an ultrasound or a waiting period before an abortion have been introduced in 21 states. Legislation that would require misleading information on the potential to reverse a medication abortion is moving quickly and has already passed the first chamber in Indiana, Montana and South Dakota.
Medication abortion restrictions: One specific focus this year has been on medication abortion—a clear response by antiabortion legislators to the push for broader telehealth access to that method during the pandemic. So far this year, more than a dozen measures have been introduced in 10 states. These measures take several approaches: from banning the method entirely to placing limitations on provision to adding unnecessary counseling requirements. Two new types of restrictive legislation would prohibit mailing the medication to patients and potentially require a provider to contract with another physician for any complications or would limit provision of medication abortion only up to nine weeks of pregnancy. Measures on this topic are already moving in Arkansas, Indiana, Montana and Oklahoma.
Abortion in the Courts
Even before any newly enacted abortion restrictions might be challenged in court, federal and state courts are already facing several dozen abortion-related cases to adjudicate. In broad strokes, these cases take two approaches: those that have the potential to overturn Roe v. Wade and those that could drastically weaken abortion rights in other ways. Any action by the U.S. Supreme Court to limit abortion rights will have deleterious effects across the country, particularly for people who already have limited access to care and for those in the South, the Plains and the Midwest who have already been hard hit by abortion restrictions.
Overturning abortion rights: Cases challenging abortion bans at a certain point during pregnancy are intended to provide the Supreme Court with the opportunity to overturn abortion rights outright and are among those closest to reaching the Court’s docket. The Court is currently considering whether to take one such case challenging a Mississippi ban at 15 weeks of pregnancy. Other cases on gestational age bans are pending with federal appellate courts, including cases from Arkansas, Georgia, Missouri and North Carolina. On a related topic, the Kentucky Attorney General has petitioned the Court to take a case on the state’s law that would ban the standard method of abortion used after 15 weeks of pregnancy. Cases on similar bans in Texas and Arkansas are currently at the appellate level.
Undermining abortion rights: Cases on abortion restrictions, which are more likely to undermine rather than fully eliminate abortion rights, are also moving through the court process. These cases may seem to have less effect than those challenging abortion bans, but if some of these restrictions are upheld, they can close clinics and keep patients from obtaining needed care. For example, cases challenging fetal tissue disposal regulations in Arkansas and Texas are pending in federal appellate courts. And a case on Kentucky’s requirement that an abortion clinic have an emergency transfer agreement with a hospital is also pending with a federal appeals court.
Protecting and Expanding Abortion Access
Despite the dangers of new state laws and harmful court decisions, the news is not all grim. State lawmakers supportive of abortion rights have also stepped up over the past several years to enact laws that protect abortion rights and access. Colorado, Delaware, Illinois, Massachusetts, New York, Oregon, Rhode Island, Vermont and the District of Columbia have all adopted abortion protections and most also repealed pre-Roe abortion bans. Currently, 14 states and DC have these protections in place. Notably, these states are primarily in the Northeast and the West Coast, leaving most of the middle of the country unprotected.
At the end of February, New Mexico Gov. Michelle Lujan Grisham (D) signed legislation that repeals the state’s pre-Roe abortion ban. This is significant because having pre-Roe abortion bans on the books leaves open the possibility of enforcing them in the future if the U.S. Supreme Court were to overturn Roe. In New Mexico, the law only allowed abortion in cases of life endangerment, severe health conditions, rape and incest.
With President Biden in the White House, a House majority supportive of abortion rights and an evenly divided Senate, there is also the potential for progress at the federal level. On its own, the Biden-Harris administration should take steps like vocally proclaiming its commitment to abortion rights and access for all, reviewing medically unnecessary restrictions on medication abortion, stepping up efforts to protect abortion providers and patients from violence, and rescinding regulations that expanded exemptions from providing or facilitating care based on religious or moral grounds for abortion and other reproductive health care.
Congress should address concerns about the erosion of abortion rights by creating a federal statutory right to access abortion without medically unnecessary restrictions through the Women’s Health Protection Act. This piece of legislation would protect pregnant people’s access to abortion by establishing federal statutory rights for providers to deliver and patients to receive abortion care without medically unnecessary restrictions and bans. Adopting nationwide protections would dramatically decrease the number of legal barriers to abortion that patients face and set the stage for increasing access to care.