Supreme Court could return abortion debate to the states

By David A. Lieb and Steve LeBlanc

Associated Press

BOSTON — Anticipating renewed fights over abortion, some governors and state lawmakers already are searching for ways to enhance or dismantle the right in their constitutions and laws.

President Donald Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court has raised the possibility that a conservative court majority could weaken or overturn the 1973 Roe v. Wade ruling, which created a nationwide right to abortion. That could fan an already raging battle in states over what should and should not be legal.

While a complete reversal of Roe remains a longshot, some Democratic elected officials want to enact new abortion protections and repeal dormant laws that criminalize abortion. While those laws have been ignored for decades, some stretching back to the 19th century, Democrats want to erase them so they cannot be revived in the future.

“As long as they are enshrined in statute, they can be picked up and used by people who do not feel the same way about women and their bodies that I would say most people in this state feel,” said Massachusetts state Senate President Harriette Chandler, a Democrat.

Chandler is pushing to repeal an abortion ban from the 1800s that has remained unenforced, in part because of a 1981 state court ruling protecting access to abortion.

The Massachusetts Senate approved the bill unanimously in January. The House speaker, also a Democrat, said that chamber will take it up before the end of the formal legislative session July 31.

In New York, Democratic Gov. Andrew Cuomo has been holding rallies after Kavanaugh’s nomination this week urging the state Senate to reconvene. He wants it to strengthen the right to an abortion, a seemingly unlikely event in the Republican-led chamber.

Democratic Assembly Speaker Carl Heastie said the state law legalizing abortion, passed three years before the Roe ruling, includes a ban on third-trimester abortions and offers very limited exceptions. The Assembly has passed legislation codifying Roe six consecutive times, but the Senate has repeatedly blocked it.

“There may have once been a time when we felt comfortable with the protections Roe v. Wade offered,” Heastie said. “But that time has passed, and now these fundamental rights are threatened like never before. We cannot afford to take this right for granted.”

Seventeen states already have laws that could be used to restrict the legal status of abortions if Roe is overturned or severely limited. Of those, Massachusetts is one of 10 states that still have pre-Roe abortion bans on the books, according to the Guttmacher Institute, a national research group that supports abortion rights.

The institute says nine other states have laws specifically protecting abortion rights.

Lawmakers in some Republican-led states have been attempting for decades to chip away at the Roe ruling by restricting when, where and how abortions can be provided. Kavanaugh’s appointment could lead to a surge in such measures.

“The time is right. We need to act on it,” said Missouri Rep. Mike Moon, who is hoping Trump’s Supreme Court appointment breathes new life into an anti-abortion state constitutional amendment that stalled earlier this year.

The Missouri proposal states that “nothing in this constitution secures or protects a right to abortion or requires the funding of an abortion.” It mirrors one first adopted by Tennessee voters in 2014 and placed on this November’s ballot by Republican-led legislatures in Alabama and West Virginia.

The Tennessee measure was intended to overturn a state Supreme Court determination that the state constitution provided an even greater protection for abortion than the federal one. If the Roe precedent is reversed or weakened, similar constitutional amendments in other states could erect a shield against lawsuits asserting state-based abortion rights.

At the time of the Roe v. Wade decision, just four states — Alaska, Hawaii, New York and Washington — allowed abortion on demand prior to fetal viability. California also broadly interpreted a woman’s “mental health” exception to allow many abortions, according to the National Right to Life Committee. Most states had strict bans.

David O’Steen, executive director of the National Right to Life Committee, said the high court’s 1973 ruling “bottled up the discussion” and imposed a nationwide policy at a time when there was no public consensus in favor of abortion rights.

“We’ve had the subsequent 45 years where (the) pro-life movement has been seeking one way or the other to bring this back to the domain of elected representatives, rather than the courts,” he said.

If Roe is overturned, O’Steen anticipates that some states would swiftly implement sweeping bans on abortion, some would maintain broad access to the procedure and others would plunge into legislative debate over what types of abortion laws they should have.

“The idea that a reversal of Roe would end abortion — that’s simply not correct,” he said.

Assertions that Kavanaugh could sway Supreme Court opinion to allow states to ban abortion are “a lot of hyperbole coming out of the left,” Florida Republican Party Chairman Blaise Ingoglia said Wednesday in a media conference call with Republican U.S. Rep. Matt Gaetz.

Gaetz said some abortion limitations “could receive more favorable treatment, bringing our country a more pro-life position, but it wouldn’t necessarily have to fundamentally alter the holding in Roe.”

Florida politics are dominated by Republicans, yet the state also has dozens of clinics that provide abortions.

Earlier this year, before Anthony Kennedy announced he was retiring from the court, Rhode Island Democratic House Speaker Nicholas Mattiello called concerns about Roe being overturned “irrelevant” and “not founded in reality.” But now, Rhode Island Democratic Rep. Edie Ajello, a longtime abortion rights advocate, said it’s important to codify the Roe decision into state law before it is further eroded at the federal level.

Ajello has sponsored unsuccessful legislation that would strike several old state laws. One of those, passed shortly after the Roe decision, imposed prison sentences on those who provide aid or counsel “to procure a miscarriage” unless necessary to save a woman’s life.

Ajello said such laws are insulting and demeaning to women.

“For that reason, they ought to be off the books,” she said.