Republican officials in more than a half-dozen states across the country moved this week to replicate Texas’s restrictive abortion ban after the Supreme Court declined to step in and stop the law from taking effect.
GOP officials in at least seven states, including Arkansas, Florida, South Carolina and South Dakota, have suggested they may review or amend their states’ laws to mirror Texas’s legislation, which effectively bans abortions after six weeks. Kentucky, Louisiana, Oklahoma, Ohio and more are expected to follow, after a year abortion activists have deemed “the worst legislative year ever for U.S. abortion rights.”
“It’s something we’re already working on,” Florida Senate President Wilton Simpson told local news station WFLA-TV when asked about copying the Texas law, which empowers private citizens to report and sue providers who offer the procedure after six weeks.
Announcing he planned to introduce a copycat bill, Arkansas state Sen. Jason Rapert, a Republican, the founder and president of the National Association of Christian Lawmakers, shared a template of legislation lawmakers in other states could fill in the blanks on and reproduce.
In South Dakota, where just two facilities in the state provide abortions, Gov. Kristi Noem, a Republican, said Thursday she’s directing lawyers in her office to review Texas’s latest abortion law and the state’s current laws “to make sure we have the strongest pro life laws on the books.”
A quarter of states will likely introduce legislation that mirrors Texas’s ban, according to the Guttmacher Institute, a research organization that supports access to reproductive health. More abortion restrictions, an estimated 97, have been enacted in 2021 than any year since Roe v. Wade was decided in 1973. Elizabeth Nash, a state policy analyst for the group, expects the number to break 100 in the days after the ban became law in Texas.
“This has been a seismic change,” Nash told The Washington Post. “Other states are clearly going to pay attention.”
Though most state legislatures are out on summer recesses, Nash said she expects to see Texas-style abortion bills filed before their next sessions begin. These bills will likely be high on the agenda next year, she said.
“In many places really the only thing left to do is ban abortion,” she said. “And they have momentum.”
The nation has reached a critical moment for abortion rights, with the Supreme Court preparing to hear a case in which Mississippi has asked it to overrule the landmark Roe v. Wade Supreme Court decision that established a woman’s right to an abortion. Meanwhile, House Speaker Nancy Pelosi, D-Calif., said she would call for a vote on legislation to cement the right to abortion into federal law.
A majority of Americans favor reproductive rights; 63% of Americans agree with the ruling in Roe, a Quinnipiac University Poll in May found.
GOP state leaders, whose attempts to outlaw abortions have faced and sometimes failed to pass legal scrutiny, could find new success with a bill like Texas’s, which allows private citizens to bring suit against abortion providers or anyone who “aids or abets” the procedure.
“If the Texas legislation stands a greater chance of being upheld by the Supreme Court, certainly we would move to pass legislation that would mirror what Texas did,” said South Carolina state Sen. Larry Grooms, a Republican, whose abortion ban bill that was passed during the last session was affirmed unconstitutional in the U.S. Circuit Court of Appeals for the 4th Circuit.
Despite celebrations by antiabortion activists in Texas, some Republicans sounded a more cautious note. Senate Minority Leader McConnell, R-Ky., described the ruling as “a highly technical decision” and said “whether it leads to a broader ruling on Roe v. Wade is unclear at this point.”
Others sounded a more cautious note. Florida Gov. Ron DeSantis, a Republican, told reporters Thursday he would “have to look more significantly” at the Texas approach but maintained he was “pro-life.”
“I welcome pro-life legislation,” he said. “What they did in Texas was interesting.”
Although Idaho’s legislation session never formally adjourned, state Senate President Pro Tempore Chuck Winder, a Republican, said he wouldn’t bring senators back to consider similar legislation as Texas’s ban.
“We already have a fetal heartbeat bill in Idaho,” he told the Associated Press, referring to proponents’ name for such a bill based on when an embryo’s cardiac activity can first be detected by an ultrasound. (Medical experts say that’s a misnomer, however, as an embryo does not have a developed heart at six weeks.)
Sen. Grooms of South Carolina brushed aside national polling data, saying it doesn’t reflect opinions in South Carolina, where he believes more people are coming around to antiabortion stances. He also said this is a morality issue, rather than a political one.
“For me, it’s not about winning at the polls,” he said. “It’s about protecting the sanctity of human life, and that includes unborn humans.”
Ohio Republican state Sen. Kristina Roegner, who introduced a bill in March that would make abortion procedures a felony, celebrated the Texas ban but stopped short of saying she would sponsor an identical bill.
“As an unwavering advocate for the sanctity of human life, I applaud Texas for standing up to protect unborn human babies,” she said in a statement. “As a mother of three daughters, I am pleased to have carried the heartbeat bill in Ohio, and will continue to fight for the right to life.”
Two antiabortion groups told The Post that while they applaud Texas’s creativity in formulating a law that successfully circumvented Roe, the Mississippi Supreme Court case is their priority.
“This was an act of desperation in Texas, to figure out some way around all the challenges that states constantly have enacting any kind of restriction, but really the job falls on the state to protect unborn people from being exterminated,” said Steve Antosh, general counsel for the National Pro-Life Alliance.
“There could be some judge that finds a way to stop it next week,” said Carol Tobias, president of the National Right to Life. “But if this is saving babies right now, of course, we’re supporting it.”
Advocates on both sides predicted the fallout will ramp up activism and rulemaking on one of the most fraught issues in American politics. Antiabortion groups are expected to seize on Texas victory, moving forward with other restrictions.
“This [Texas ruling] gives us more motivation to push our state legislature to advance our key issues,” said Mike Gonidakis, president of Ohio Right to Life.
Lawmakers in Republican-controlled legislatures that have banned abortions early in pregnancies, such as South Carolina, Idaho and Oklahoma, could “piggyback” existing laws with Texas’s new enforcement mechanism that threatens to penalize providers, said University of Houston law professor Seth Chandler, pointing to Texas’s law triggering an abortion ban if Roe were overturned.
“I don’t see why the two couldn’t work in tandem, assuming of course that S.B. 8 is constitutional, which in my opinion, it is not,” he said, referring to the Texas bill by its number.
Chandler predicted that a provider challenging the ban could win on the grounds that the law is inconsistent with Supreme Court precedent that states cannot prohibit abortions prior to viability.
But because the bill made the public the enforcer instead of state, it would be harder to challenge. If the Texas law holds up in court, Chandler warned that the same strategy could be used by other states on a host of issues aside from abortion - such as guns and coronavirus restrictions.
“What’s good for the conservative goose is good for the liberal gander,” Chandler said.
Even as legislators and lobbyists ready themselves for a possible domino effect of similar bills, some reproductive rights advocates predicted a possible pushback against abortion bans in the wake of such a restrictive policy from Texas.
Since Vicki Ringer, public affairs director for Planned Parenthood Votes South Atlantic, warned of an attempt by South Carolina lawmakers to replicate the Texas ban in an op-ed in The State Thursday, she said her phone has “been ringing off the hook.” In South Carolina, where rates of maternal mortality are among the highest in the nation, particularly among Black women, such restrictions could be detrimental to women’s health, she said.
“People are terrified,” Ringer said in an interview.
The burden of any abortion restriction falls on people of color, low-income individuals and young people, advocates say.
As clinics close and appointments grow more scarce, people could have to travel hours, sometimes across state lines, to find care. The average cost of an abortion is $550, according to the Guttmacher Institute, and traveling for appointments adds additional cost and requires people to take time off work.
The threat to Roe could galvanize voters who believed the 1973 decision was settled law, said Kristin Ford, a spokeswoman for NARAL Pro-Choice America.
“Now that it is so clear that is not the case, that Roe is really hanging on by a very, very tenuous thread, the political calculation for voters changes,” she said. “Republicans are making a risky political calculation here because it is firing up our side. People are extremely concerned.”