Even those who want to do so will be forced to back down. The only way forward is to win more elections.
When the Supreme Court struck down the constitutional right to abortion last year, strict abortion bans in more than a dozen states snapped into effect. Known as “trigger laws,” many of the bans were passed years earlier, with little public scrutiny of the potential consequences, because few expected Roe v. Wade to be overturned.
Most of the trigger laws included language allowing abortion when “necessary” to prevent a pregnant person’s death or “substantial and irreversible” impairment to a major bodily function. Three allowed it for fatal fetal anomalies and two permitted it for rape victims who filed a police report. But those exceptions have been nearly inaccessible in all but the most extreme cases.
Many of the laws specify that mental health reasons can’t qualify as a medical emergency, even if a doctor diagnoses that a patient might harm herself or die if she continues a pregnancy. The laws also carry steep felony penalties — in Texas, a doctor could face life in prison for performing an abortion.
The overturn of Roe has intensified the struggle between those who don’t want strict abortion bans to trump the life and health of the pregnant person and absolutists who see preservation of a fetus as the singular goal, even over the objections of the majority of voters. In the states where near-total abortion bans went into effect after Roe’s protections evaporated, the absolutists have largely been winning.
And the human toll has become clear.
On the floors of state legislatures over the past year, doctors detailed the risks their pregnant patients have faced when forced to wait to terminate until their health deteriorated. Women shared their trauma. Some Republican lawmakers even promised to support clarifications.
But so far, few efforts to add exceptions to the laws have succeeded.
A review by ProPublica of 12 of the nation’s strictest abortion bans passed before Roe was overturned found that over the course of the 2023 legislative session, only four states made changes. Those changes were limited and steered by religious organizations. None allowed doctors to provide abortions to patients who want to terminate their pregnancies because of health risks.
ProPublica spoke with more than 30 doctors across the country about their experiences trying to provide care for patients in abortion-ban states and also reviewed news articles, medical journal studies and lawsuits. In at least 70 public cases across 12 states, women with pregnancy complications faced severe health risks and were denied abortion care or had treatment delayed due to abortion bans. Some nearly died or lost their fertility as a result. The doctors say the true number is much higher.
Early signs indicated Republicans might compromise, as voters in red states showed strong popular support for protecting abortion access and polls revealed the majority of American voters do not support total abortion bans. That opposition has only hardened since then, as reproductive rights drove a wave of Democratic electoral victories in Kentucky, Virginia and Pennsylvania in November. In Ohio, voters approved an amendment to the state’s constitution guaranteeing the right to an abortion.
But in the most conservative states, Republicans ultimately fell in line with highly organized Christian groups. Those activists fought to keep the most restrictive abortion bans in place by threatening to pull funding and support primary challenges to lawmakers that didn’t stand strong.
Their fervor to protect the laws reflects a bedrock philosophy within the American anti-abortion movement: that all abortion exceptions — even those that protect the pregnant person’s life or health — should be considered the same as sanctioning murder.
This article was published before the Kate Cox situation, which among many other things should make the points made here even clearer. So click over and read the whole thing, it’s worth your time. The story notes that the Texas legislature managed to pass a very small exemption to its draconian anti-abortion law, which it notes was done quietly so as not to stir up the rabble. Extreme gerrymandering plays a role in all this, since so many legislators have only their primaries to worry about. That makes the task of winning more elections a lot harder in many of these states, but I don’t see how that can be avoided. Winning a federal trifecta to pass a national abortion rights bill would help as well, but at some point this has to also be fought at the state level. It’s going to be a long fight.