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2019 Could Be a 'Watershed Year' for Abortion Legislation

If 2018 was a wake-up call, 2019 is set to be a reckoning.
Members of the House of Representatives are sworn in during the first session of the 116th Congress at the U.S. Capitol on January 3rd, 2019, in Washington, D.C.

Members of the House of Representatives are sworn in during the first session of the 116th Congress at the U.S. Capitol on January 3rd, 2019, in Washington, D.C. According to the advocacy organization NARAL Pro-Choice America, the election created not just a Democratic majority in the House, but a pro-choice majority as well.

When Justice Anthony Kennedy—a conservative who defended abortion rights—announced his resignation from the Supreme Court last summer, part of the nation seemed to wake up as if from a dream. A dream where abortion access in the United States, protected by the Supreme Court in its 1973 Roe v. Wade decision, remained safe and unassailable. Suddenly, the news was awash with stories of how a new conservative majority on the court could overturn Roe, leading to potential abortion bans in dozens of states. Few had clued into just how eroded abortion access had already become. Opponents of abortion, of course, had been wide awake.

Then came Brett Kavanaugh, the new conservative justice widely expected to be hostile to Roe, and then came the mid-terms. In some ways, the election ushered in a new era of pro-choice politics. But it also left state-wide anti-choice majorities untouched in places like Mississippi and Indiana. As a result, Elisabeth Smith, head of state and local policy for the legal group the Center for Reproductive Rights, predicts a "watershed year" of abortion legislation. If 2018 was a wake-up call, 2019 is set to be a reckoning.

"We expect that there will be a really large number of bills introduced that both seek to really restrict reproductive rights or expand access to them," Smith says. Groups fighting against abortion access see this as a moment when ending that legal right appears within reach, she says, and those who support abortion access believe it's in a heightened state of danger.

"This is a time where women are feeling they have some political power. This is not a foregone conclusion, but there's no time to stand on the sidelines anymore," notes Julie McClain Downey, senior director of campaign communications at Emily's List, which helps to elect pro-choice Democratic women. Some pre-mid-term polls found Democrats cared more about abortion than Republicans.

Downey points to pro-choice gains in a variety of states—including the wins of outspoken candidates on reproductive rights in tight races such as Lucy McBath's in Georgia's sixth congressional district and Abby Finkenauer in Iowa's first congressional district. She says Emily's List helped break the Republican supermajority in Michigan's Senate and elect a pro-choice governor, and helped flip the House and Senate and executive council in New Hampshire.

Federally, the election created not just a Democratic majority in the U.S. House, but a pro-choice majority, too, according to the advocacy organization NARAL Pro-Choice America. "There's the symbolic nature of that, which is important, but there are tangible ways that's going to manifest in 2019 and beyond," says Amanda Thayer, NARAL's deputy national communications director. House Democrats have already made the first effort to push back against the Trump administration's combative approach to reproductive rights: Their proposed spending bill included a measure to reopen funding for overseas organizations that provide, or advise women on, abortion.

Most typically blue states have decidedly middling histories of actively protecting abortion—only three, Washington, Oregon, and California, are considered to be supportive or very supportive of abortion rights, according to the Guttmacher Institute. In some of those states, voters elected stridently pro-choice politicians who have already begun to push for greater abortion rights legislation. In New York, re-elected Democratic Governor Andrew Cuomo is capitalizing on a pro-choice legislature by promising to expand reproductive rights in the state within the first 30 days of the session. In Rhode Island, re-elected Democratic Governor Gina Raimondo favors passing the Reproductive Health Care Act, which would enshrine reproductive freedom protections into state law.

Both Thayer and Downey also pointed to Nevada, which has become the country's first majority-female legislature and where voters elected a pro-choice, Democratic governor. Legislators are expecting to vote this year on a bill to decriminalize abortion in the state called the Trust Women Act.

Then there is the other side of America, which is dominant across the South, but spreads far beyond, and has grown increasingly emboldened. The side where entire state houses are majority pro-life, bringing Americans to the brink of imagining a post-Roe nation. Nearly half of the country—21 states—are deemed hostile or very hostile to abortion rights based on their laws, according to the Guttmacher Institute. The Center for Reproductive Rights lists 22 states at a high risk of banning abortion if Roe were overturned. These lists, though not exact matches, overlap heavily. And they overlap with another important list: The 22 states where Republicans control both the legislature and governorship (compared to the Democrats' 14) after the elections. Thirteen states have achieved such a trifecta, including Oklahoma. There, one of the first bills before the Senate in 2019 would ban all abortion and make it punishable akin to homicide. A similar measure has been tabled in another triple-list state, Indiana.

This is the part of the country largely responsible for the 424 abortion restrictions enacted in the last eight years. It's also the part of the country where the number of abortion clinics has dwindled in some states to one and where politicians openly proclaim their goal to end abortion in their state. Last year, for example, Ohio passed a bill that will ban abortion after a fetal heartbeat is detected, as early as six weeks. The state also banned dilation and evacuation—the most common second-trimester abortion procedure. In Arizona, a new law taking effect this year requires doctors to ask why women want to have an abortion. A law forcing women who want an abortion to view a sonogram has already been proposed for this year's legislative session in South Dakota.

States are fighting numerous court battles over these laws—cases intended to end up before the newly conservative Supreme Court and transform the state of abortion in America with a single ruling in a way that not even decades of anti-choice activism has achieved. (The Center for Reproductive Rights alone is engaged in 24 lawsuits, 10 at the appeals court level.) In the most consequential possibility, the Supreme Court could accept an abortion-related case this year, overturn Roe v. Wade, and precipitate abortion bans in perhaps dozens of states (the court has already reviewed a case over an Indiana abortion ban).

In another option, federal courts and the Supreme Court could continue to allow states to create laws that curtail abortion and achieve a not dissimilar end. Even when a state is being sued over a law—such as Mississippi over a 15-week abortion ban—lawmakers in other states (in this case, Louisiana) continue to pass similar restrictions, unswayed. In the new legislative season, Smith says she's expecting laws to fall under a few connected themes. The concept of fetal personhood—where a fertilized egg is considered a fully formed person, and the source of Alabama's 2018 constitutional amendment—is one. Another is self-induced abortions, and a third is criminalizing abortion (as in Oklahoma). "Reporting requirements (over self-induced abortions) are step one, and step two is criminal penalties," Smith says.

But she cautions these are still only predictions, and she, like everyone, is waiting to see what politicians and judges will do: "It's the biggest 'stay tuned.'"