Supreme Court will likely put legislators in charge of abortion rights

Posted on July 4, 2018

While our abortion rights allies try to make the best of the upcoming Supreme Court confirmation battle, we must prepare for the likelihood that the nominee will be confirmed and that Roe v. Wade will be overturned or severely crippled as soon as June 2019.

In that case, the right to abortion will be determined state-by-state and legislators stand at the vanguard.

At present, only 17 states protect the fundamental right to abortion in their statutes or constitutions.

In stark contrast, four states (LA, MS, ND, SD) have enacted “trigger bans” which would (almost certainly) ban abortion the moment that the Supreme Court overturns Roe.

Nine other states (AL, AR, AZ, MA, MI, NM, OK, WV, WI) have pre-Roe abortion bans still on their books which would (probably) ban abortion shortly after a Court ruling. (Some of those states might require a court to lift a preexisting injunction.)

The other 20 states are up for grabs.

Because of the immediacy and importance of the matter, abortion rights will probably become a top issue in state legislative elections everywhere. Since 82 percent of all state legislative seats in America are on the ballot this November, that’s where the fate of abortion rights will likely be decided.

While Democrats have historically been rather cautious about the issue, supporting Roe v. Wade makes extremely good politics. For years, polls have consistently shown that about 70 percent of Americans support Roe. And support for Roe is even higher among political Independents.

This supermajority of voters in favor of Roe is not going to change. Americans can be manipulated and confused on many issues. But when the matter is simple and fairly well-understood, “confirmation bias” works in our favor—in this case, people will ignore the right-wing lies.

At the same time, no one doubts that the issue will drive up engagement and turnout among the progressive base.

The bottom line is this: Although Justice Kennedy’s retirement is a tragedy, it will create a political opportunity never before seen in America. Progressives have the chance to use abortion rights as one of their strongest political arguments. And that’s what they must do, immediately.

Fundamental human rights should not depend on the outcome of elections, but this year, those protections hang in the balance.