Democrats hope to use their newfound political control in some states to guarantee women’s access to abortion, while some GOP strongholds may dampen their efforts to deepen restrictions after disappointing midterm results.
Even after their win this month, Democrats lack the power to codify abortion rights into federal law. That puts the abortion debate entirely on the states to navigate and rework the patchwork of laws that have been in place since the Supreme Court overturned Roe v. Wade.
There will still be a patchwork of policies: In Minnesota, Democrats plan to add abortion rights to state law. In Florida’s GOP stronghold, leaders are talking about more restrictions but haven’t yet come up with a plan. In Pennsylvania, pickups for Democrats mean they can likely prevent Republicans from adding anti-abortion language to the state constitution, and in divided states like Wisconsin, a legislative deadlock remains.
“The real uncertainty is how far states will go” with abortion bans, said Mary Ziegler, a professor at the University of California, Davis, School of Law and an expert on reproductive politics. After the midterms, some states may think twice before proceeding with strict bans.
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But, she said, some conservative lawmakers might say, “I don’t see a problem here. We’re fine. We won our elections and our voters want an abortion ban.”
Roe’s reversal, which enshrined the right to abortion nationwide, was generally unpopular with voters. According to VoteCast, a survey of more than 94,000 voters conducted for The Associated Press by NORC at the University of Chicago, about 6 in 10 say they are angry or dissatisfied with the decision, while about 4 in 10 were satisfied. About 6 in 10 Democratic voters say the ruling has angered them.
“Whatever people’s personal feelings about abortion may be, they’re very clear that they don’t want the government and politicians messing with their health care system,” said Megan Peterson, executive director of Gender Justice, a non-profit organization. for-profit organization in Minnesota that advocates for equal rights.
(Tammy Ljungblad/The Kansas City Star/Tribune News Service via Getty Images)
Minnesota has no laws guaranteeing access to abortion, but abortion is protected by a 1995 state Supreme Court ruling citing a woman’s right to privacy. After an election that saw Democrats take control of both the legislative chambers and the governor’s office for the first time in eight years, Speaker of the House Melissa Hortman said codifying abortion rights into state law will be a priority when session begins in January.
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On the battlefield in Michigan, voters overwhelmingly approved an amendment that enshrines abortion rights in the state constitution and affirms a person’s right to make pregnancy-related decisions about abortion and other reproductive services without interference.
Nevertheless, it is a priority to strike a 1931 law criminalizing abortion from the books, said Senate Majority Leader Winnie Brinks. Democrats took control of the House and Senate this month. When the new legislature is sworn in, it will be the first time since 1983 that the party has taken full control of the state government.
Brinks said Democrats ultimately want to promote other legislation that focuses on reproductive rights.
“People have been very clear that they value their reproductive freedoms at a very high level and we want to make sure we affirm that,” she said.
May 5, 2022: Registered nurse Ashia George, 30, and medical assistant Pamela Dann, 54, await completion of an abortion procedure at the Scotsdale Womens Center in Detroit, Michigan, on May 5, 2022. (Brittany Greeson for The Washington Post via Ge
Elsewhere, a legislative stalemate could be on the horizon.
READ MORE: The Kentucky Supreme Court hears arguments over the statewide ban on abortion
In Wisconsin, Democratic Governor Tony Evers won re-election, while Republicans increased their majority in the state legislatures, but fell short of their goal of achieving a supermajority capable of overriding vetoes.
Republican Assembly Speaker Robin Vos reiterated his call to pass a bill allowing rape and incest exceptions and other amendments to the 1849 law to ensure the state’s ban would withstand judicial challenge. But Evers, who expressed confidence in a lawsuit, said he would veto any bill that upholds the ban.
“I don’t see any way to solve this legally,” said Evers.
Pennsylvania voters have flipped about a dozen seats to Democrats in the state House, which could block Republican efforts to add anti-abortion language to the state constitution.
Nebraska Republicans want to ban abortion, but the GOP appears to have failed to secure the 33 seats it needs in the officially impartial, single-house legislature to overcome filibusters. That could make it harder for them to ban abortion, even though they control the legislature and hold all major offices statewide.
Other GOP strongholds see roadblocks to bans.
In Kansas, the legislature maintained its strong anti-abortion majority, but opponents of abortion are curtailed by a 2019 state Supreme Court decision declaring access to abortion a “fundamental” right under the state constitution.
Voters in August decisively rejected a proposed constitutional amendment to overturn that decision. Opponents of abortion are instead looking at other proposals.
Rep. Dan Hawkins, a Wichita Republican who is expected to become speaker of the House in January, said lawmakers may pursue a bill requiring health care providers to take all reasonable steps to save the life of a live birth, including after an attempt to abortion.
“You have to do something that you think has a chance of success,” Hawkins said.
Voters in Montana, where Republicans have a supermajority in the legislature, rejected a similar measure on Nov. 8. Five days later, a legislator there requested a bill to “establish that an infant born alive is a person”. It has yet to be drafted, but another bill already drafted for next year calls for a ban on abortion at all stages of pregnancy.
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Kentucky voters rejected a Republican-backed ballot measure aimed at denying any constitutional protections for abortion — highlighting a clear divide between voter sentiment and the expectations of the GOP-dominated legislature, which imposed a near-total ban on abortion.
“The people of Kentucky have spoken up and their answer is no — no to extremist politicians who ban abortion and make private medical decisions on their behalf,” said Amber Duke, interim executive director of Kentucky’s ACLU.
In Florida, which continued to tighten its GOP control, the issue was also murky. Florida passed a 15-week ban on abortion during the 2022 legislative session, with no exceptions for rape or incest.
Republican Gov. Ron DeSantis won by a landslide, and the House and Senate went from staunchly Republican to GOP supermajorities in every chamber. The governor and legislative leaders have all said they support new abortion restrictions, but no specific language has been proposed.
Christine Matthews, a pollster who has worked for Republicans, said there could be more debates even among conservative lawmakers about how far restrictions should go, such as this year in Indiana and West Virginia, which passed laws banning abortion during pregnancy , but with exceptions in cases of rape and incest.
“For the first time, some of these particularly male legislators struggled with the fact that this is hard, not everything goes one way,” Matthews said. “People who support it as being between a woman and a doctor say, ‘Yeah, no kidding.'”