by Jennifer Kendrex
While the fight to overturn the Supreme Court’s 1973 Roe v. Wade decision wages on, For Lifers continue to advance state-level legislation and constitutional amendments to regulate abortion and save unborn lives. Since Roe, states nationwide have implemented over 1,000 abortion-related restrictions, about a third of which have been passed in the last decade. These laws are wide-ranging—from ultrasound requirements to mandatory waiting periods to parental consent or notification laws to abortion bans after a certain point in pregnancy. (This is done most commonly at fetal viability, which currently hovers around 22-24 weeks gestation—and inches ever earlier with new medical technologies. More recently, in several states, the ban takes effect once a fetal heartbeat is detected, often as early as six weeks).
While courts have struck down some of these restrictions as infringing upon a woman’s right to seek an abortion under Roe, Supreme Court precedent has still acknowledged the government’s legitimate interest in regulating abortion under certain circumstances. For Lifers have wisely tapped into this interest, and state regulations continue to gain momentum. New ballot measures in several states this year and in 2022 will hopefully continue to turn the tide toward a more For Life landscape nationwide.
This November, residents in two states—Colorado and Louisiana—will vote on life-saving initiatives. Colorado’s Proposition 115 proposes a ban on abortion after 22 weeks of pregnancy unless necessary to save the mother’s life. Supporters of the measure hope to remove Colorado from the list of only seven states where abortion is legal without restriction until birth.
Louisiana’s proposed Amendment 1 would add a sentence to the Louisiana Declaration of Rights stating that “nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” Should Roe be overturned, Amendment 1 would prevent the judiciary from carving a right to an abortion into the state’s constitution. Louisiana is also one of 10 states with a “trigger law” in place to ban almost all abortions in the event of Roe being overturned.
Three other states—Florida, Massachusetts, and Nevada—plan to introduce life-affirming initiatives on their 2022 ballots. (Vermont may also introduce an abortion related initiative, but it would expand abortion rights and “reproductive autonomy” via a constitutional amendment.)
In Florida, the measure would ban abortion after a fetal heartbeat can be detected. If it succeeds, Florida will join 10 other states—Georgia, Kentucky, Louisiana, Mississippi, Ohio, Tennessee, Iowa, North Dakota, Arkansas, and Missouri—that have passed so-called “heartbeat bills” since 2013. (Alabama passed a near total ban on abortion in 2019.)
While federal judges continue to block these heartbeat bills as unconstitutional under Roe and the 1992 Supreme Court decision Planned Parenthood of S.E. Pennsylvania v. Casey, the court challenges may present an opportunity for the Supreme Court to overturn the Roe holding.
In Massachusetts, voters will decide on a “no right to public funding for abortion initiative” in 2022, and Nevada residents will hopefully vote on a proposed law requiring parents or guardians of minors to be notified 48 hours in advance of an abortion—although the backers of the bill must garner enough signatures by an upcoming deadline or receive a court-ordered extension due to the pandemic.
These proposed measures represent some good news in the fight for the unborn. Despite Roe’s holding, pro-lifers are making significant progress in saving unborn children and protecting pregnant women from exploitation and abuse by leveraging the states’ legitimate interest in regulating the abortion industry. These regulations may also prompt judicial review, possibly laying the groundwork for the Supreme Court to revisit and overturn its abortion precedents.
Jennifer Kendrex is an attorney in the Seattle, Washington, area. The views expressed in this article are solely her own in her personal capacity.