State legislation to curb abortion rights is surging. What's next?

Image: Pro-life activists
Pro-life activists try to block the sign of a pro-choice activist during the 2018 March for Life on Jan. 19, 2018 in Washington. Copyright Alex Wong Getty Images file
By Elena Moore and Carrie Dann with NBC News Politics
Share this articleComments
Share this articleClose Button

From 'trigger laws' to the courts: An explainer on what's happening in the fight over abortion in 2019


WASHINGTON — In the first months of 2019, state governments around the country have proposed a surge of bills related to abortion.

With many factors in play, notably, the conservative lean of the Supreme Court — what appears to be the legislative game plan for anti-abortion activists? And how are abortion rights groups responding?

Here's a look.

Early and preemptive abortion bans

Early abortion bans, known as 'heartbeat bills,' are being proposed in at least ten states. So far, those in Missouri, Mississippi, Tennessee, Georgia, and Kentucky have advanced the farthest in state legislatures.

The bills would outlaw abortion after a fetal heartbeat is present, which can be found within six weeks of the beginning of a pregnancy.

Despite the wave of new proposed legislation, every 'heartbeat' bill passed to date has been overturned in state or federal court.

In other states, those bills were never signed into law.

That was the case in Ohio last year, when former GOP Gov. John Kasich's decided toveto the ban in December. But Ohio is revisiting the idea now that a more conservative Republican, Mike DeWine, is the governor. Ohio Right to Life has also made the 'heartbeat' legislation a top priority, after years of no public support.

"We're going to work within the bounds of the Supreme Court… Now with Kavanagh and Gorsuch, we see a much better opportunity than honestly even a year ago," explained Jamieson Gordon, the director of communications and marketing for Ohio Right to Life. "The heartbeat bill is the next incremental step to overturning Roe v. Wade."

In addition to heartbeat bills, five states have passed preemptive 'trigger laws,' which would immediately ban abortion outright if Roe v. Wade is overturned by the Supreme Court. Several states have recently unveiled proposals as well.

Anti-abortion rights lawsuits

Lawmakers have also tried to ban the most common form of abortion in the second trimester, the dilation and evacuation (D&E) method. The procedure is already illegal in Mississippi, West Virginia, and Ohio, although most recently, Planned Parenthood has sued Ohio over their D&E ban.

Five states have had D&E bans struck down in court, and Texas — one of the five — is currently awaiting a verdict from the 5th Circuit Court of Appeals on the issue.

Alabama — which had their D&E ban blocked by the 11th Circuit Court of Appeals last summer — is pushing back on the decision as well. The State Attorney General announced that a petition advocating for the Supreme Court to hear the case is being supported by 21 states.

In addition to D&E bans, there are close to 20 abortion cases in the federal appeals court and pending around the country. These lawsuits challenge a range of issues including extended waiting periods and required ultrasounds, 15-week bans, admitting privileges, abortion for minors, Medicaid coverage at clinics, and race, sex, or disability-based abortions.

How abortion rights groups are responding

Abortion rights groups say they'll continue to fight against the new proposals as well as more established paths to limit abortion rights, which they say have been normalized by the latest push for even more stringent legislation.

"All are geared towards the same end goal," said Amanda Thayer, the NARAL Deputy National Communications Director. "Introducing a six-week ban is a way of moving the goal posts to make a 20-week ban feel more reasonable."

Elizabeth Nash, the Senior State Issues Manager at Guttmacher Institute, adds: "When you see these very extreme abortion bans it makes it feel like the 48-hour waiting period is moderate. They all carry weight."

Nash may not be alone in seeing GOP-led abortion bans as "extreme." According to a new NBC News/Wall Street Journal Survey, 54 percent of Americans believe the Republican party has adopted positions on abortion that are "outside the mainstream," while only 41 percent feel that way about Democratic positions on the issue.


Nash argues that the conservative majority on the Supreme Court is actually motivating groups that support reproductive rights, including those in New York, where lawmakers recently legalized abortions after 24 weeks when the mother's health is seriously threatened or the fetus cannot live once born.

Legislation to extend or protect abortion rights is also continuing to be proposed in New Mexico, Vermont, Rhode Island, Illinois, Massachusetts, and Nevada.

Some of these efforts, though, have faced a fresh round criticism in the wake of widely-panned comments made by Virginia lawmakers — including embattled Democratic Gov. Ralph Northam — earlier this year.

And the stakes, abortion rights activists say, remain as high as ever, especially with GOP control of the White House and the edge in selecting judges to fill empty spots in federal court.

"We have a GOP and the Trump-Pence White House dead-set on rolling back these rights, and a Supreme Court poised to make that possible," Thayer said.

Share this articleComments