Trump-Appointed Judges Fuel Abortion Debate in the States

This is part one of Stateline’s 2021 State of the States series.

Larry Grooms believes that “abortion is denying the right to life to many South Carolinians.” The Republican state senator, who has been in office since 1997, has introduced a bill to restrict abortion access nearly every year because, he says, “the right to life to me is a sacred issue.”

Roxanne Sutocky’s main job is to wrangle money, rides and babysitting for women seeking abortions in Cherry Hill, New Jersey, where she is director of community engagement for The Women’s Centers, which has facilities in four states. “People shouldn’t have to go through logistical Olympics to get an appointment,” she said. “Especially when we’re talking about time-sensitive, pregnancy-related care.”

This year, Grooms is sponsoring a bill that would outlaw most abortions at around the sixth week of pregnancy, when an ultrasound can detect embryonic cardiac activity—what abortion rights opponents call a fetal heartbeat. Sutocky is advocating for a New Jersey bill that would enshrine the right to an abortion in state law—and make it cheaper and less complicated to get one.

The federal courts have repeatedly blocked bills like Grooms’, and New Jersey already is solidly pro-abortion rights. Yet Grooms and Sutocky both argue that the legislation they are backing this year is urgently needed, and for the same reason: Former President Donald Trump’s judges.

Trump’s three Supreme Court appointments are the most by any president since Ronald Reagan (who served two terms), and last year’s appointment of Amy Coney Barrett to replace Ruth Bader Ginsburg gave conservatives a solid 6-3 majority on the high court.

Trump also nominated, and the GOP-led Senate confirmed, more than 220 lower court judges around the country. Most significantly, he appointed 54 federal appellate judges, just one short of the 55 that President Barack Obama appointed in two terms. In so doing, Trump tipped the balance of several appeals courts from majority Democratic nominees to majority Republican ones.

Barrett’s ascent raises the possibility that the Supreme Court might overturn Roe v. Wade, the 1973 case that legalized abortion nationwide.

For state lawmakers who support abortion rights, Barrett’s arrival on the high court was a call to action: If the high court allows states to outlaw abortion, the legislators want to make sure that wherever possible, abortion rights are enshrined in state law. Their goal is to cement access to abortions and remove what they view as onerous regulations on patients and providers. Some also want to expand access for lower-income, younger and immigrant women.

Lawmakers who oppose abortion rights view the newly conservative federal judiciary as an opportunity to further restrict access to the procedure. Their goal is to topple Roe, but in the meantime, they are determined to pass as many laws as they can—from banning abortion after a certain point in pregnancy to tightening rules on abortion providers—to see what will withstand judicial scrutiny.

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Mary Ziegler, a law professor at Florida State University and the author of Abortion in America: A Legal History, Roe v. Wade to the Present, said she expects “a ton” of abortion bills in state legislatures this session, primarily because Barrett’s appointment will prompt “a pretty energetic response from conservative lawmakers.”

“The thing to note is that states have not always restricted abortion as much as they can,” Ziegler said. “A lot of the restrictions you see are not just designed to maximize protection of fetal life. It’s to tee up cases that the Supreme Court will find attractive.

“The more confident lawmakers are about the Supreme Court, the more that bills that seemed like a reach last year will seem plausible,” Ziegler said.

There are other reasons why lawmakers in many states will grapple with abortion access this year.

Republicans strengthened their legislative majorities in some states and won the governor’s mansion in Montana, clearing the way for anti-abortion rights legislation that had been blocked. In addition, the increasing popularity of medication abortion—the use of the drugs mifepristone and misoprostol to terminate pregnancies up to the 10th week—has made abortion rights supporters eager to expand access and opponents determined to restrict it.

Earlier this month, the Supreme Court reinstated a federal rule that women seeking a medication abortion must visit a medical office to obtain the first of the two pills, even during the pandemic. In her dissent, Justice Sonia Sotomayor said she hopes the Biden administration will revisit the issue.

But there is little doubt that the changes in the federal judiciary are the main motivator for state lawmakers.

“No lawmaker wakes up and says, ‘I’m going to introduce this bill and I can’t wait for it to be [blocked] by the courts,’” said Katie Glenn, government affairs counsel at Americans United for Life, a Washington, D.C.-based nonprofit that opposes abortion rights.

“Having a sense that there is more latitude for lawmakers to pass legislation that will survive scrutiny—I think it gives them more comfort to really go for it, more enthusiasm to pass regulations that maybe otherwise they would feel nervous about.”

Massachusetts state Rep. Lindsay Sabadosa, a Democrat and abortion rights supporter, said Barrett replacing Ginsburg on the high court provided a jolt to her side.

“For far too long we’ve taken for granted that [abortion rights] are protected by the Constitution, so we don’t have to do much here,” Sabadosa said. “If we can use the momentum of [Ruth Bader Ginsburg] passing and an anti-choice jurist being placed on the Supreme Court, it’s proper to do that and to push back against restrictions.”

Pushing the Envelope

Supreme Court rulings handed down after Roe v. Wade gave states the authority to regulate abortion access, if they didn’t place an “undue burden” on patients. Since 2011, states have enacted 480 laws designed to restrict access, according to the Guttmacher Institute, a research and policy organization that supports abortion rights.

Legislators opposed to abortion rights have pursued different strategies. For example, 38 states now require an abortion to be performed by a licensed physician rather than a nurse, physician’s assistant or other medical professional, according to Guttmacher. In 43 states, abortions are prohibited after a specified point in pregnancy, except when necessary to protect the woman’s life or health.

A dozen states restrict coverage of abortion in private insurance plans; in 18 states a woman must undergo counseling before an abortion; and 37 states require some sort of parental involvement in a minor’s decision to have an abortion.

Last year, 10 states approved new abortion restrictions, according to Guttmacher. Tennessee approved the most far-reaching legislation, banning abortion as early as the sixth week of pregnancy and prohibiting any abortion sought because of race, sex or genetic abnormality.

A U.S. district judge in Nashville blocked enactment of the measure, which Republican Gov. Bill Lee had proposed along with GOP legislative leaders. Legal challenges have thwarted similar laws in Georgia and Mississippi, but supporters hope such measures will lead to a Supreme Court case.

U.S. District Judge William Campbell, a Trump appointee, said he halted the Tennessee measure because it is likely unconstitutional based on the Supreme Court’s “undue burden” framework. But he raised the possibility that things might change.

“This Court leaves debate about Roe [and other abortion rights cases] to the learned jurists on the Supreme Court, legal scholars, legislators and the public—a debate that remains lively and important,” Campbell wrote in a memorandum.

Tennessee Senate Majority Leader Jack Johnson, who carried the bill for the governor, described it as “one of the most comprehensive pro-life bills ever passed by a state legislature.”

“We did anticipate that it would face legal challenges,” the Republican told Stateline in a phone interview. “We have consistently passed and considered pro-life legislation, regardless of the composition of the judiciary.”

Though state lawmakers have been grappling with the issue for years, Trump’s new judges—and especially Barrett’s appointment to the Supreme Court—have set the stage for an especially busy year in the abortion debate.

The Kentucky legislature this month quickly approved a bill that would give the state attorney general the power to regulate women’s health clinics in the state. Democratic Gov. Andy Beshear vetoed it Jan. 19.

Kansas Republicans this month reintroduced a constitutional amendment that would allow the state legislature to impose restrictions on abortion access, preempting a 2019 Kansas Supreme Court ruling that the state constitution protects abortion rights.

An anti-abortion rights amendment to the Iowa constitution advanced last week, and a North Dakota proposal would make it a felony to perform an abortion, except to protect the life of the patient.

In Texas, the chair of an influential Senate panel told the Austin American-Statesman last month that, “we hope to pass a whole lot of pro-life legislation this session.” State Sen. Bryan Hughes, a Republican, said there is strong momentum for a bill to ban abortions at around the sixth week of pregnancy—before many women know they are pregnant. Under current Texas law, abortions are prohibited after 20 weeks of pregnancy.

Texas state Rep. Steve Toth, who has introduced a measure that would ban abortions after 12 weeks, said the changes in the federal judiciary were not the impetus for his bill.

“Is life sacred? Is life protected? Should it be protected all the way to natural death? Yes, it should be,” Toth, a Republican, told Stateline. “And that’s how I will continue to push the issue, whether the courts are with me or not.”

But Toth acknowledged that the presence of more conservative judges on the bench provides encouragement. “Oh yeah—we definitely look at it that way,” he said. “The courts, we think, are going to be much more favorable to us, not just SCOTUS, but all the way down.”

In South Carolina, lawmakers are working quickly to advance the legislation that Grooms is sponsoring, with a Senate subcommittee approving it on Jan. 14. Last year the measure cruised through the House but foundered in the upper chamber, where GOP leaders lacked the votes to overcome a Democratic filibuster. This year, with strengthened Republican majorities in both chambers, supporters are confident they can send the bill to GOP Gov. Henry McMaster, who has vowed to sign it.

Grooms said he isn’t worried by the likelihood of a legal challenge.

“A lot of what state legislatures do on the issue of abortion is guided by what federal courts have allowed,” he said. “And it seems like the envelope has been pushed a little further and I expect a friendlier Supreme Court.”

A Direct Response

Some states last year took steps to shore up abortion rights. After Democrats took control of the state legislature, Virginia repealed some regulations on health clinics, allowed nurse practitioners to provide first-trimester abortions and rescinded ultrasound, counseling and waiting period requirements. Colorado voters defeated a ballot measure that would have banned abortions beyond the 22nd week of pregnancy.

And in Massachusetts, state lawmakers last year attached stalled abortion rights legislation to the state budget, a move that was “directly in response to the appointment of Barrett to the court,” said Carrie Baker, a professor in the Program for the Study of Women and Gender at Smith College, and president of the Abortion Rights Fund of Western Massachusetts.

Republican Gov. Charlie Baker vetoed the measure, but legislators last month overrode him.

“[The new law] says the right to abortion is an affirmative right that will not be interfered with by the state,” said Carrie Baker, who is not related to the governor. Under the new law, Massachusetts will allow abortions after 24 weeks if there is a fatal fetal anomaly, or when a doctor determines it is necessary “to preserve the patient’s physical or mental health.” It also lowers the age at which women can seek an abortion without parental consent from 18 to 16.

This year, abortion rights advocates in Massachusetts would like to remove other impediments, especially financial ones.

Rep. Sabadosa is sponsoring a bill that would require health centers at public universities to provide medication abortions on campus, and another measure that would eliminate copayments and deductibles for reproductive health care.

“If you can’t physically get to an appointment or pay for that appointment, it’s not a right, it’s a privilege—for some, but not for all,” Sabadosa said.

Dr. Neena Qasba, an OB-GYN who practices at a hospital in Springfield, Massachusetts, said many of her patients have insurance that doesn’t cover contraception or abortion, and that “access in rural areas is a huge issue.”

“There is an opportunity and a need to expand telemedicine, especially for medication abortion, and do the best we can to bring services closer to folks,” Qasba said. “The overall message is that keeping abortion access safe and legal is just a first step. Legality still doesn’t mean access.”

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In New Jersey, Democratic Gov. Phil Murphy and Democratic legislative leaders have proposed the Reproductive Freedom Act, which would explicitly affirm New Jerseyans’ right to an abortion and require that private insurers cover birth control and abortions with no out-of-pocket costs.

The bill also would expand a financial aid program for people who aren’t eligible for Medicaid, which covers abortions in New Jersey, because of their immigration status.

Sutocky, the patient advocate in Cherry Hill, New Jersey, said she thinks the measure is critically needed because she has seen first-hand how financial and logistical barriers can trip up women, even in a state that is nominally supportive of abortion rights.

“Legal access really is on the line, but it’s just the first step. Legality and those protections from the courts are not enough and they’ve never been enough,” Sutocky said.

“These mounting threats throughout the United States have really created an urgency for us to take action.”