While the Biden administration works to shore up support for reproductive rights in Washington, the push to overturn Roe v. Wade is gaining momentum beyond the Beltway. In several states, Republican-controlled legislatures and statehouses are mounting direct challenges to constitutionally protected abortion rights.
Last week alone, governors of seven states signed laws that restrict or defy abortion rights under Roe. That could soon give the newly reshaped U.S. Supreme Court an opportunity to chip away at or even overturn it.
For example, Montana Gov. Greg Gianforte, whose anti-science views include rejecting evolution and denying that humans cause climate change, signed several anti-abortion bills, including a law requiring “informed consent” for undergoing medication abortions by taking mifepristone. Feigning concern for patients’ health, the law requires doctors to tell them about risk of death and substantial physical harm from taking the medication. It also requires patients to sign a waiver acknowledging the risks, even though those risks are vanishingly small. According to scientific research, the risk of major complications from a medication abortion is 0.4 percent, while the risk of death is only 0.00064 percent. The law also requires that the medication be prescribed in person, which is medically unnecessary.
Oklahoma mounted an even stronger challenge to Roe last week. Gov. Kevin Stitt signed three abortion restrictions into law on April 26, including a near-total ban on abortion. The law would prohibit abortions outside of medical emergencies, even in cases of rape or incest. Stitt followed up a day later by signing another bill that would outlaw abortion in Oklahoma altogether should Roe be overturned.
These are just two of a long list of states severely restricting abortions and deliberately challenging abortion rights laid out in Roe. In some conservative states, legislators are passing anti-abortion bills with “trigger provisions,” which suspend anti-abortion laws from going into effect until a federal appeals court upholds similar legislation from another state.
These trigger laws set up a potential domino effect. For example, any gestational age bans passed by states have been blocked by the lower federal courts, but that could change any time. Just one adverse federal ruling could trigger many extreme anti-abortion laws going into effect. And that would give the Supreme Court, with a conservative majority, occasion to intervene and settle the matter.
That would be the fulfillment of the legal strategy the anti-abortion lobby has been pursuing for many years. Its aim is to chip away at abortion rights in hopes of getting the Supreme Court to weigh in by overturning or severely restricting Roe. Thanks to Trump packing the federal courts with abortion opponents, that strategy is now nearing the goal line.
Now, with almost one in three federal appeals court judges and one in four district court judges appointed by Trump, the lower federal courts are far more hostile to reproductive health and rights than they were just four years ago.
But most Americans are not hostile to reproductive health and rights. On the contrary, more than three-quarters of us believe that Roe should be upheld. Despite this, abortion opponents have been relentless in their efforts to impose their ideology. Oppressive state abortion restrictions and federal policies like the Hyde Amendment have effectively put abortion out of reach for millions in the U.S.
Whether or not the Supreme Court overturns Roe, more must be done to uphold the rights enshrined in it, until everyone has access to abortion who needs or wants it, regardless of income, race, or zip code
Even with Trump out of office, the anti-abortion movement is still virulent — and poses a growing, serious threat to reproductive health and rights. As more governors sign anti-abortion legislation restricting the right to abortion, we are inching ever closer to the ultimate showdown, with a 6-3 conservative majority dominating the Supreme Court.
It’s now up to the Biden administration and Congress to safeguard abortion rights and counter escalating state attacks on them. Congress needs to reintroduce and pass the Women’s Health Protection Act that would establish federal statutory abortion rights and protect people against medically unnecessary state restrictions and bans. Roe v. Wade is in imminent jeopardy, and the breaking point is nearing.
Bridget Kelly is Director of Research at the Population Institute, a nonprofit based in Washington, D.C. that supports reproductive health and rights.