November 2022 Church & State Magazine

Canceling Choice: The Future Of Legal Abortion Has Roiled The U.S. Political System

  Rob Boston

Restrictions on abortion or outright bans have become common in some parts of the country since the U.S. Supreme Court overturned Roe v. Wade in June.

The New York Times has been tracking the status of legal abortion state by state since the high court’s ruling in Dobbs v. Jackson Women’s Health Organization. The situation is fluid because some bans/restrictions are being challenged in court, but here is a nationwide snapshot:

The following states ban abortion with no exemptions for rape and incest: Alabama, Arkansas, Idaho, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin. In Mississippi, abortion is banned with an exception for rape but not incest.

In Georgia, abortion is banned after six weeks of pregnancy. In Arizona and Florida, it is banned after 15 weeks. In Utah, it’s banned after 18 weeks, and in North Carolina, it’s banned after 20 weeks. In Ohio, a law banning abortion after six weeks is on hold while litigation proceeds.

In a number of other states, including Indiana, Iowa, North Dakota, Mich­igan, Montana, South Carolina and Wyoming, efforts to ban most abortions have been blocked by courts.

In many of the remaining states, abortion remains legal but often with restrictions. In some states, that situation could change depending on election outcomes this month. In Pennsylvania, for example, the state’s Dem­o­cratic governor has vetoed legislation further restricting abortion and issued an executive order seeking to protect people from other states who travel to Pennsylvania for abortions. But the legislature, which is in the hands of Republicans, is eager to adopt new restrictions on abortion or ban it outright.

Some states are moving to protect the right to abortion. In Maryland, a new law expands access to abortion providers. In New Jersey, a proposed law would make the state a “sanctuary” for those in other states seeking the procedure. In Oregon, legislators have approved $15 million to support those who travel there from other states for the procedure.

In some anti-abortion states, legislators are promoting extreme measures. Shortly after Roe was overturned, the Thomas More Society, a Christian nationalist legal group, unveiled model legislation for state lawmakers designed to punish people who travel to another state for an abortion.

“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” Peter Breen, the group’s vice president and senior counsel, told The Washington Post. “It’s not a free abortion card when you drive across the state line.”

The model bill is based on the notorious Texas law that allows private citizens to sue anyone who “aids and abets” in procuring an abortion, reported The Post. A bill along these lines was introduced in Missouri earlier this year but failed to pass. Similar legislation has been proposed in Arkansas and South Dakota.

But pro-choice legislators in some states are countering with laws that would protect people from other states who come to their states for abortions. A new Connecticut law, reported The Post, aims to “shield people from out-of-state summonses or subpoenas issued in cases related to abortion procedures that are legal in Connecticut. And it would prevent Connecticut authorities from adhering to another state’s request to investigate or punish anyone involved in facilitating a legal abortion in Connecticut.”

State Rep. Matt Blumenthal (D-Stamford) told The Post that legislators in anti-abortion states “have made clear that their intent is not only to ban abortion within their own state’s borders, but to ban it in states where it is expressly permitted.”

At the federal level, U.S. Attorney General Merrick Garland has vowed to side with states that are seeking to protect abortion access, asserting that “the Constitution continues to restrict states’ authority to ban reproductive services provided outside their borders.”

A future Republican president, however, could easily change course in favor of more banning and punishing. And it remains unclear how the Supreme Court might come down on this issue.

The abortion issue has also upended American politics, with some surprising results.

On Aug. 2, voters in Kansas went to the polls and voted to retain language in their state constitution that affirms abortion rights. The outcome was lopsided, with 59% of voters affirming abortion rights.

Anti-abortion forces undoubtedly thought the outcome would be different. Officials in the state put the referendum question on a primary ballot that mostly attracts Republican voters, hoping to depress turnout among pro-choice forces. It didn’t work. The people of Kansas went to the polls and made it clear that they support the right to legal abortion.

The hierarchy of the Roman Cath­olic Church and other anti-abortion groups poured millions into the referendum. Religion News Service reported that the Kansas City archdiocese spent about $2.45 million on the campaign, and the dioceses of Wichita and Salina added an additional $600,000 at least. Individual Catholic parishes around the state also contributed, and a political action committee affiliated with the conservative wing of the church added $500,000.

After the results came in and it was clear that the attempt to remove the right to abortion from the Kansas Constitution had soundly failed, Arch­bishop Joseph Naumann of Kansas City issued a statement bemoaning, “We were not able to overcome the millions spent by the abortion industry to mislead Kansans about the amendment, nor the overwhelming bias of the secular press whose failure to report clearly on the true nature of the amendment served to advance the cause of the abortion industry.”

Pro-choice groups had a different take.

“The people of Kansas have spoken,” said Rachel Sweet of Kansans for Con­stitutional Freedom. “They think that abortion should be safe, legal and accessible in the state of Kansas.”

Despite the solid win for abortion rights, Melissa Leavitt, a state resident who has spread baseless conspiracy theories about elections not being secure, filed for a recount. Under state law, she had to pay for it. Leavitt raised some money on her own but got most of the required funds from Mark Gietzen, a longtime anti-abortion zealot.

Leavitt had hoped to force a state­wide recount, but that would have cost $230,000. She wasn’t able to raise that much, though, so the recount included just nine of Kansas’ 105 counties, including Johnson and Sedgwick counties, the two largest in the state. As The Kansas City Star noted, the recount “burned countless hours as election officials scrambled to conclude the arduous process before a Saturday deadline.”

The Star noted that the recount “never had any chance of changing the outcome but was sought by an election denier and anti-abortion activist advancing baseless allegations of fraud.”

After all that work, the recount modified the outcome by fewer than 60 votes. Undaunted, Gietzen said he plans to file a lawsuit seeking a full statewide recount. Spinning a wild conspiracy theory, he made strange ramblings suggesting that some of the people who took part in the vote don’t actually exist.

Abortion also played a role in a special Aug. 31 election for a House seat in Alaska. Democrat Mary Peltola defeated Sarah Palin, the state’s former governor, who was attempting a political comeback. Alaska is a deep red state, and Palin had been endorsed by former President Donald Trump. Peltola vowed to protect abortion rights, while Palin is anti-choice.

Five states will hold referendum votes on abortion this month. Voters in California, Michigan and Vermont will vote on whether to codify abortion rights in their state constitutions. In Kentucky and Montana, voters will decide the fate of proposals that seek to further limit abortion rights.

Americans United is no newcomer to the fight for reproductive freedom. The organization worked to overturn state laws that restricted access to birth control in the 1950s and ’60s and supported Roe when it was handed down in 1973. AU argues that bans on abortion force everyone to live under the theological dictates of religions that oppose abortion. AU President and CEO Rachel Laser has repeatedly stated that abortion is a church-state issue.

In early October, Americans Uni­ted, joined by 16 religious and religious-freedom organizations, filed a brief urging the Kentucky Supreme Court to protect religious freedom by blocking two state abortion bans that impose ultraconservative legislators’ religious views on all Kentuckians, in violation of the religious-freedom protections in that state’s constitution.

Lawsuits that challenge abortion restrictions on religious freedom and church-state grounds are also pending in Florida and Indiana. Americans United plans to file similar litigation in other states soon.

“Religious freedom demands access to abortion so people can make their own reproductive decisions according to their own principles and beliefs,” Laser said in a statement to the media. “Abortion bans undermine religious freedom by imposing one religious viewpoint on all of us. Abortion bans are a direct attack on the separation of church and state.”


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