2021 Is on Track to Become the Most Devastating Antiabortion State Legislative Session in Decades
Updated on June 14, 2021
Right-wing ideologues are engaging in a shock and awe campaign against abortion rights that is largely getting lost against the background of a broader attack on other basic rights, including a wave of voter suppression laws and attacks on LGBTQ people.
The number of abortion restrictions—and specifically bans on abortion designed to directly challenge Roe v. Wade and the U.S. constitutional right to abortion—that have swiftly been enacted over the past five months is unprecedented. If this trend continues, 2021 will end up as the most damaging antiabortion state legislative session ever.
Tallying the Damage in 2021 so Far
Since January, there have been 561 abortion restrictions, including 165 abortion bans, introduced across 47 states (all counts current as of June 7, 2021). A whopping 83 of those restrictions have been enacted across 16 states, including 10 bans.
To put those figures in context, by the same date in 2011—the year previously regarded as the most hostile to abortion rights since Roe was decided—70 restrictions had been enacted, including seven bans. Already, 2021 is tied with 1973 for the second-most enacted restrictions ever.
Altogether, states have enacted an astounding 1,313 abortion restrictions since Roe v. Wade was decided in 1973—566 of them since the beginning of 2011.
Due to the numbing effect from the onslaught of abortion restrictions enacted over the past 10 years, the level of damage to abortion rights and access may not be immediately apparent. It is no accident that 80% of the 83 restrictions enacted this year were in states already considered to be hostile or very hostile toward abortion rights. The 2021 abortion restrictions largely build on earlier ones, as each additional restriction increases patients’ logistical, financial and legal barriers to care, especially where entire clusters of states are hostile to abortion.
As our earlier analysis predicted, state policymakers are testing the limits of what the new U.S. Supreme Court majority might allow and laying the groundwork for a day when federal constitutional protections for abortion are weakened or eliminated entirely. The damage would fall heaviest on people already marginalized and oppressed by structural inequities, including people with low incomes, people of color, young people and LGBTQ people. In response, state policymakers, the Biden-Harris administration and Congress must act to safeguard the right to abortion, including through passage of the Women’s Health Protection Act, which would establish federal statutory abortion rights for providers and patients against state restrictions and bans.
Texas Outlaws Abortion at Six Weeks—with a Chilling New Twist
The latest devastating news comes out Texas, where Gov. Greg Abbott (R) signed legislation on May 19 that bans abortion at six weeks of gestation, so early in pregnancy that many people may not even know that they are pregnant.
The law comes with a new, uniquely cruel twist that would allow anyone who is opposed to abortion—regardless of where they live or whether they have any association with a patient—to sue an abortion provider or anyone who helps a patient obtain an abortion, such as by providing financial help or transportation.
Texas has enacted 25 abortion restrictions in the past decade. During this time, the number of abortion clinics in the state has been reduced by half. This new ban is effectively a near-total ban on abortion, due to logistical, legal and financial hurdles that patients would have to navigate in such a small window of time. There were seven million women of reproductive age in Texas as of 2019, and if legal abortion care in the state were shut down, the average one-way driving distance to an abortion clinic would increase from 12 miles to 243 miles, 20 times the distance.
Early abortion bans surged as a leading antiabortion legislative trend in 2019, but while seven states have passed such laws, none are in effect due to court intervention. However, abortion opponents are hoping this new Texas law will fare better in the courts. In particular, they hope that the new provision allowing anyone to sue a provider—or anyone involved in an abortion—will have a further chilling effect on abortion in the state, shut down providers and make it difficult for abortion rights defenders to successfully challenge the law in court.
Because of the coordinated and creeping nature of these tactics, it can be anticipated that antiabortion lawmakers in other states may try to pass similar legislation in the near future. That poses new dangers for abortion rights, because this is a new and untested approach that we may see used in ever more creative ways to circumvent or challenge U.S. Supreme Court rulings upholding abortion rights.
A Devastating Record: 28 Abortion Restrictions Enacted in Just Four Days
Between April 26 and April 29, 28 new restrictions were signed into law in seven states—almost half (46%) of the restrictions passed by that point in 2021. This was the highest number of new restrictions signed in a single week in at least a decade. That count includes multiple abortion bans that directly challenge Roe: a near-total ban on abortion in Oklahoma, six-week abortion bans in Idaho and Oklahoma, a 20-week ban in Montana, and a ban on abortion for non-lethal genetic anomalies in Arizona.
Another alarming trend is states’ continued focus on restricting medication abortion, with four new restrictions in Montana, three in Indiana and another restriction in Arizona. This trend is a direct response by antiabortion legislators to the push for broader telehealth access to that method during the COVID-19 pandemic, and it follows the U.S. Food and Drug Administration’s April 12 decision to allow patients to receive medication abortion pills by mail during the pandemic.
State legislatures are also falling back on their well-worn playbook of imposing unnecessary and intentionally burdensome restrictions on abortion clinics and providers. Five states—Arizona, Arkansas, Indiana, Kentucky and Oklahoma—enacted restrictions on abortion clinics, an issue that has not been hot in state legislatures since the Supreme Court in 2016 struck down regulations enacted in Texas. Most notably, Arkansas and Kentucky passed laws making it easier for state agencies to close abortion clinics.
Furthermore, a disturbing record was set the week of April 26: With its enactment of a new restriction on abortion clinics, Arkansas has now enacted 20 restrictions in 2021, tying Louisiana’s 1978 record for the most restrictions in a single year.
The current barrage of coordinated attacks must be taken seriously as the unprecedented threat to reproductive health care and rights that it is. The year 2021 is well on its way to being a defining one in abortion rights history.