Liberal-leaning states are rushing to enshrine the right to abortion within their borders ahead of the Supreme Court’s ruling in a case challenging Roe v. Wade, the landmark decision that guaranteed a national right to abortion.
After a majority of justices signaled qualms with Roe during oral arguments late last year, most of the focus has been on conservative states that have, or are working on, “snapback” provisions that would impose restrictions on abortion should states get more freedom to act.
Liberal states have been preparing for the ruling by moving to preserve more permissive policies.
In Vermont, the legislature has passed the Reproductive Liberty Amendment, codifying abortion rights in the state’s constitution. The proposed amendment will go to voters for approval in November.
“In the face of an all-out assault on abortion rights at the state and federal levels, Vermont voters will now have the opportunity to make Vermont a leader by explicitly enshrining reproductive liberty in our state constitution in November,” said James Lyall, executive director of the American Civil Liberties Union of Vermont.
Vermont started the process to amend its constitution in 2019, before the current abortion case was on the Supreme Court’s docket and before President Trump’s third pick, Justice Amy Coney Barrett, gave the court’s conservatives a 6-3 edge.
Other states were prodded by the rumblings at the court. New Jersey Gov. Phil Murphy, a Democrat, signed legislation in January to protect abortion rights and prod insurers to cover the procedure.
Vermont and New Jersey are among more than a dozen states and the District of Columbia where policymakers are pursuing protections for abortion rights as the high court’s ruling nears, according to a tally by The Associated Press.
About 20 states have stricter laws poised to take effect should Roe no longer bind them. Others are looking to join them.
Jessica Arons, senior advocacy and policy counsel at the ACLU, said Kentucky and Kansas have measures on the ballot this year to eliminate abortion rights in their constitutions. Lawmakers in the Florida House of Representatives have passed a 15-week abortion ban, and Arizona and West Virginia lawmakers are readying 15-week bans.
Those laws would track that of Mississippi, whose bar on most abortions after 15 weeks of pregnancy is the matter before the Supreme Court.
Lower courts found that the Mississippi law violates the national legal framework on abortion laid out in Roe and the follow-up 1992 ruling Casey v. Planned Parenthood. Those rulings guarantee the right to abortion before the fetus becomes viable outside the womb, with only limited room for restrictions such as parental notification or short waiting periods.
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Mississippi told the justices that the legal reasoning of Roe has aged poorly over the past five decades, and they are asking the high court to overturn the decision. Without Roe, abortion policy would largely return to legislatures, either in the states or in Congress.
The Supreme Court is also pondering a case involving a Texas law banning abortions after a fetal heartbeat is detected, which is usually at six to eight weeks of pregnancy.
Although Mississippi’s law has been enjoined during court proceedings, the justices have allowed the Texas law to remain in place.
One difference in the bans is that the Mississippi law is enforced by the state while the Texas law is effectively enforced by citizens, making it difficult for abortion advocates to challenge the law in court.
Marc Hearron, an attorney for the Center for Reproductive Rights, which is representing the Texas abortion providers, said leaving the Texas law in place is an “ominous sign” that the justices will overturn Roe v. Wade.
“This is a preview of what will happen on a much larger scale if Roe falls,” he said.
He said Congress should enact legislation at the national level to protect abortion rights in every state.
The House of Representatives passed the Women’s Health Protection Act last year. It would codify a right to abortion into federal law.
The Senate is expected to take up the legislation in the coming week.
“Because a woman’s right to choose is a fundamental right … this Senate will vote on the Women’s Health Protection Act to protect abortion rights,” Senate Majority Leader Charles E. Schumer, New York Democrat, tweeted last week.
Pro-life advocates said that legislation would nullify state measures curtailing abortion access and reverse the momentum of their movement in recent years.
“This radical ‘Abortion Until Birth Act’ would block popular pro-life laws around the country, including limits on late-term abortions when unborn babies feel pain, and effectively enshrine an unlimited abortion ‘right’ in federal law,” said Marjorie Dannenfelser, president of the Susan B. Anthony List. “Pro-abortion Democrats are desperate to stop the pro-life momentum demonstrated by pro-life laws advancing in state legislatures nationwide.”
The bill is unlikely to clear a Republican-led filibuster in the evenly divided Senate.
• This article is based in part on wire service reports.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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