And the 6-3 supermajority of anti-abortion justices on the Supreme Court could help them.
While the 2020 presidential election was a glimmer of hope for reproductive health initiatives at the federal level, anti-abortion Republicans picked up seats in state legislatures across the country. In 2021, expect to see a flurry of anti-abortion bills designed to eventually get a hearing at a Supreme Court that now has an anti-choice supermajority.
Leading the way is Texas, where the GOP retained its majority in the state Legislature. The state has a long history of severely restricting abortion, including 2013's House Bill 2, a targeted restriction on abortion providers that required providers to adhere to unnecessary standards. Though the Supreme Court eventually struck the law down in 2016, 21 of Texas' 40 abortion providers closed in the interim.
Since the 2020 election ended, two major anti-abortion bills have been filed in advance of the next session in the Texas Legislature. One bill would create a trigger ban, which would automatically make abortion illegal if Roe v. Wade is overturned. Were that to pass, Texas would join 10 other states with similar laws. Ohio's lame-duck Legislature is also pushing a similar bill.
Another Texas bill would decrease the state's current 20-week abortion ban to 12 weeks. The Guttmacher Institute, which researches abortion policy, notes that there are shorter gestational bans in the United States, but many of those are currently barred from taking effect because of ongoing litigation.
In South Carolina, Republicans expanded their hold on the state Senate. Anti-abortion GOP Gov. Henry McMaster has already said he sees this as an opportunity to get a law passed that would ban abortion at six weeks, before many people even know they are pregnant.
In New Hampshire, the GOP picked up control of both the state House and Senate. When the Democrats controlled the Legislature, they passed a Reproductive Health Parity Act, which would have required health insurance plans to cover abortion. The GOP governor, Chris Sununu, vetoed it.
In contrast, conservative state senators pushed a "born-alive" bill earlier in 2020, but it failed to advance. However, three of the state senators who stopped the push lost their seats in the November 2020 elections, which means it is likely that the GOP-controlled state Senate will make another attempt.
"Born-alive" bills ostensibly protect babies who are born alive after an attempted abortion. However, there is no evidence that has ever happened, and it is instead used to stigmatize abortions later in pregnancy. Anti-abortion activists have pushed the bills in several states and at the federal level.
The goal of legislation like this isn't just to restrict abortion in their respective states. Rather, it's to create a case that will get to the Supreme Court and be heard by a court that now has a 6-3 supermajority of anti-abortion justices.
Conservatives make no secret of that fact. It's been a longstanding practice on the part of states that wish to ban abortion. After Justice Anthony Kennedy, a swing vote on abortion, stepped down and it was clear he'd be replaced with an anti-choice hardliner, a number of states passed restrictive laws with the express hope those laws would get a hearing at the Supreme Court. Those laws are designed to be in violation of the contours of Roe v. Wade, precisely so a court case arises. Laws passed by a few states in 2019 functionally banned abortion before people generally know they're pregnant, which currently runs afoul of Roe.
Under the Supreme Court prior to Trump, there was a reliable four-justice liberal bloc — Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, and Elena Kagan — that would vote to uphold abortion access. Justice Kennedy often served as a swing vote, meaning that cases restricting abortion weren't a slam dunk at the court.
Now, these GOP legislative gains at the state level, combined with the ascension of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court mean that abortion access is more imperiled than ever.
Published with permission of The American Independent Foundation.