States aim to chip away at abortion rights with Supreme Court in mind

Reviewed by Emily Henderson, B.Sc.Mar 2 2021

When Rep. Lola Sheldon-Galloway introduced a bill in the Montana House two years ago that would have prohibited abortions after 20 weeks of pregnancy, the Republican legislator knew it was unlikely to survive the veto pen of the Democratic governor.

Sure enough, then-Gov. Steve Bullock vetoed that bill and two other anti-abortion measures passed by the Republican-led state legislature. In his veto message, Bullock wrote that "for over 40 years, the U.S. Supreme Court has recognized that the U.S. Constitution prohibits a state from banning abortion."

But now Bullock's gone, replaced by Republican Greg Gianforte, who has promised to sign any bill that puts new limits on abortion. And abortion-rights advocates worry the court ruling that Bullock based his vetoes on — the landmark 1973 Roe v. Wade decision — is on shaky ground.

The Supreme Court tilted further right with last year's confirmation of Justice Amy Coney Barrett, giving the high court a makeup of six justices appointed by Republican presidents and three appointed by Democrats.

That has emboldened lawmakers in Montana and other right-leaning states to introduce dozens of anti-abortion bills this year in the hope that the high court will hear lawsuits against new state laws and side with the states. The goal is to chip away at Roe v. Wade.

According to Kristin Ford, national communications director for NARAL Pro-Choice America, more than 60 bills have been introduced or passed in state legislatures so far this year to restrict abortion. Most are in conservative-leaning states like Montana, Kansas and Wyoming.

"These legislators are willing to do whatever it takes to advance their extreme agenda of gutting Roe v. Wade and pushing abortion care as far out of reach as possible," Ford said. "With Roe in the crosshairs, the stakes for women, people who are pregnant and families are higher than ever."

Ford and other abortion-rights advocates said any one of those bills could be challenged and make its way to the Supreme Court.

That's the apparent aim of the conservative state lawmakers pushing bills. In Montana, legislators have introduced six anti-abortion measures so far this year, including Sheldon-Galloway's proposed ban on abortions after 20 weeks.

"If this legislation made it all the way to the Supreme Court, that would be a good thing, because we need to revisit Roe v. Wade," Sheldon-Galloway said.

Eric Scheidler, executive director of the Pro-Life Action League, based in Chicago, said the rash of bills exemplifies the changing methods of the anti-abortion movement. When his father founded the Pro-Life Action League in the 1970s, the organization's goal was simply to get the Roe v. Wade decision overturned, either in the courts or in the statehouses. But now anti-abortion groups are taking a piecemeal approach.

He said it's more likely that the current Supreme Court will overturn Roe v. Wade incrementally rather than all at once.

"Will this court overturn Roe v. Wade? It's possible," Scheidler said. "But I think we're more likely to see this court put more restrictions on abortion. I think five years from now we'll realize that Roe v. Wade was slowly overturned without it ever making a big headline."

For anti-abortion groups, pushing legislation through at the state level may be their only option since Democrats control Congress and the White House. President Joe Biden has said he wants to "codify" Roe v. Wade and appoint federal judges who will respect the precedent.

Sheldon-Galloway said her bill, dubbed the Pain-Capable Unborn Child Protection Act, would protect unborn children who might feel pain during an abortion.

Abortion advocates said that the bill is based on dubious science and that abortions at that point in pregnancy are rare and usually happen only for medical reasons. Similar bills are being introduced in Florida, Hawaii, New Jersey and Oregon.

"There are very few abortions that happen after 20 weeks, and when they do they usually occur because of a significant medical issue," said Alison James, chairperson of Montanans for Choice, an abortion-rights group. "These are usually wanted pregnancies, and so these unnecessary laws put women and families through the wringer. It will treat them like criminals."

Groups like Montanans for Choice have stepped up their efforts this year because they know that any abortion bill that passes the Montana legislature will be signed into law. Other bills working their way through the legislature would prohibit people from accessing abortion medication through the mail and require doctors to offer an ultrasound before terminating a pregnancy. Another would create a ballot initiative asking Montanans to decide whether fetuses that live through an abortion are people with legal rights.

Similar legislation has been introduced in a dozen other states, according to the National Right to Life Committee.

Nicole Smith, a fellow of the Society of Family Planning and a board member for Montanans for Choice, said it is highly likely that any abortion bills that become law would be challenged in court, making the states the first battleground in the new laws' journey to the Supreme Court.

"We're seeing an onslaught of bills," Smith said. "And it will result in a legal battle."