Planned Parenthood plans for a post-Roe future
With the confirmation of Brett Kavanaugh to the Supreme Court, the long-held goal of the anti-abortion movement and the long-standing fear of abortion-rights advocates — a decision restricting or ending altogether the right enshrined in Roe v. Wade — is likelier now than at any time since 1973. No one knows what form such a decision might take, but both sides have been preparing for a future that could return matters to the pre-Roe status quo, when each state set its own laws regulating abortion.
With Kavanaugh’s elevation, the future tense has become present, and there has been a ramping up of strategies that until now had been theoretical.
The emerging “back to the states” approach is built on the assumption that Roe probably won’t be completely and officially reversed in the near term. But even without the phrase “Roe vs Wade is officially moot,” the newly conservative Supreme Court can effectively claw back the right.
“Scholars seem to agree that undercutting is more likely than overturning,” says Elizabeth Nash, senior state issues manager for the Guttmacher Institute. “The practical effect is essentially the same.”
“Access to abortion is already different from state to state,” says Daniela Kraiem, associate director of the women and the law program at the American University Washington College of Law. “Even with Roe in place, abortion access looks very different if you are in Louisiana versus California.”
There are at least 13 such cases making their way through the federal courts, and the one being watched most closely now involves challenges to similar laws in Alabama and Texas prohibiting the dilation and evacuation procedure, which is the way 95 percent of abortions are done after the 14th week. The 11th Circuit Court of Appeals declared Alabama’s law to be unconstitutional based on Roe; the Fifth Circuit court s scheduled to hear the Texas law the day before Election Day. The Fifth Circuit court is one of the most conservative in the country, and should it uphold what the neighboring 11th Circuit court has struck down, the split could lead to the Supreme Court taking the case.
This is why the plans being announced by abortion-rights groups the past few days have an increased focus on state legislatures. Groups like NARAL and the Planned Parenthood Action Fund plan to increase their backing for abortion-rights candidates in anti-abortion states, while lobbying traditionally abortion-rights legislatures to codify abortion rights into state constitutions.
That still leaves many blue states, most strikingly New York, with pre-Roe laws that could potentially become the default in a post-Roe environment. When New York became the first state to permit abortion in 1970, it was “a great leap forward,” says Nash, but the specifics of that law — only allowing abortion up to 24 weeks unless the woman’s life is in danger — “doesn’t even meet the current Supreme Court standard, which is permitted up to age of viability and to protect life and health of the woman.”
“There have been some efforts over the years to update the law in New York, but it never got a lot of traction,” she says. “Now people are paying much more attention,” she says, and predicts that a repeal or revision of that law will be taken up by the next legislature.
With the realities of the map in mind, Planned Parenthood Action league announced a program called Care for All — a call to strengthen laws in already sympathetic states, such as pending legislation that would guarantee abortion access for women on public assistance in Illinois, require insurance companies to pay for abortion in Maine, and remove a variety of barriers to abortion and birth control in Hawaii, Oregon and Washington.
Those states and others would then become part of what Laguens describes a planned “Regional Access Network.” It would connect women — by telemedicine or by transportation — who live in states with abortion restrictions to providers in more liberal states in the Northeast, the West Coast, or outposts such as Illinois and Maryland.
Planned Parenthood, in turn, is including “culture change” as part of its newly announced strategy. Some of that will be national in scope — working with film and TV creators to include “real life, sensitive portrayals” of abortion on screens, says Kevin Griffith, vice president of communication at the Planned Parenthood Action Fund. But much will also be local, aiming to “reduce stigma in our own lives, work spaces and relationships.”
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