The Pro-Life Work Begins for Republican State Legislatures

T he overturning of Roe v. Wade has resulted in abortion legislation and debates taking center stage in state legislatures across the country. As of this writing, abortion is now banned in seven states, but this is subject to change within the next month as trigger bans go into effect and lawsuits are decided. According to the Wall Street Journal, 13 states maintain trigger bans that prohibit almost all abortions and were designed to snap into place as soon as Roe was overturned, but many of those are facing legal challenges. Some of the bans have already been put in place while others go into effect in 30 days. Alabama, Louisiana, Tennessee, and West Virginia all have constitutional amendments barring abortion, while Kansas is slated to decide on a constitutional amendment on August 2. If voters decide to amend the Kansas constitution, the Republican legislature could take action to prohibit abortion. Twenty states and the District of Columbia have abortion protections in place.

It is now up to Republican legislatures in many states to craft and pass new abortion laws to protect the unborn. They already have begun doing so, and they are facing a litany of legal challenges from abortion providers who are asking judges to block trigger laws from going into effect. Georgia governor Brian Kemp signed a heartbeat bill that banned abortion effectively at six weeks back in 2019, which was struck down by a federal judge as unconstitutional. When Georgia appealed, the Court of Appeals for the Eleventh Circuit delayed its ruling, pending the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. A federal Court of Appeals judge has given attorneys who filed a lawsuit challenging Georgia’s abortion ban three weeks to file briefs regarding how the Supreme Court’s overturning of Roe v. Wade will affect the Georgia law. Texas passed a “heartbeat bill” in 2021 that banned abortion as soon as a fetal heartbeat is detected, usually at six weeks. However, Texas also maintains a “trigger law” that was passed in case Roe was overturned, which will ban abortions completely, except in cases where the woman’s life or health is at risk. This law is supposed to go into effect 30 days after the Supreme Court ruling. However, today, a Texas judge blocked the 1925 law that bans abortion in the state, implementing a temporary restraining order. With this order in place, Texas’s 2021 “heartbeat bill,” which effectively bans abortion at six weeks, remains in effect in Texas.

On Monday, a Louisiana judge temporarily prevented the state’s “trigger” abortion ban from going into effect, granting a temporary restraining order on the ban, and a Utah judge implemented a two-week restraining order on Utah’s abortion ban. Also on Monday, in Mississippi, where the Dobbs case originated, the attorney general recognized the state’s “trigger law”; in ten days, women will be able to obtain abortions only in cases of rape or when the mother’s life is in danger. Democrats fought back when 22 attorneys general issued a joint statement that vows  to expand access to abortion in their states.

While it is relatively clear that Republicans in red states that have not already done so will pass abortion restrictions, the situation is far more complicated in states that skew more purple. There are ten states where the future of abortion restrictions is unsettled: Montana, Arizona, Nebraska, Kansas, Michigan, Wisconsin, Pennsylvania, Virginia, North Carolina, and Florida. The governor of Florida, Ron DeSantis, signed a 15-week abortion ban in the spring that is supposed to go into effect on Friday. A federal judge will decide on Thursday whether this law will remain in place after it was challenged on Monday by Planned Parenthood and other abortion providers. Glenn Youngkin of Virginia is mobilizing state Republican legislators to craft a bill that bans abortion at 15 weeks while allowing for exceptions in cases of rape, incest, and when the mother’s health is at risk. Youngkin will face obstacles in getting this bill through the general assembly once it meets in January, since Virginia’s house of delegates is controlled by Republicans while the senate is held by Democrats. Due to this divide, Youngkin expressed willingness to compromise at a 20-week ban.

North Carolina previously had a law banning abortion after 20 weeks, which was struck down in Bryant v. Woodall in 2019. State Republican legislators are pushing attorney general Josh Stein to reimplement the law. However, Stein is a Democrat, and if he decides not to reimpose the law, Republican senate president Philip Berger’s spokeswoman said state legislators will take action to enforce the 20-week ban. Republicans control both chambers of North Carolina’s legislature.

In Pennsylvania, abortion is legal up to 24 weeks. However, Republicans control both the state house and senate, and house Republican leaders released a statement in which they revealed that talks to restrict abortion in the state are “already under way.” The outgoing governor, Tom Wolf, is a Democrat, but Republicans have a shot at taking the governorship. Republican nominee Doug Mastriano, who is pro-life, is only three points behind Democrat nominee Josh Shapiro in a recent poll.

New Hampshire bans abortion after 24 weeks except to save the life of the mother and in cases in which the mother’s health is severely compromised. Unfortunately for pro-lifers, Governor Chris Sununu indicated he would not be signing into law a more protective abortion ban, saying that regardless of the overturning of Roe v. Wade, “Access to these services will continue to remain safe, accessible, and legal in New Hampshire.” House majority leader Jason Osborne, a Republican, parroted Sununu’s statement, saying abortion would remain legal in the state. However, Republicans control both houses of the state legislature. Thus, in theory, if Republicans ignore their majority leader and pass pro-life legislation that is vetoed by Sununu, Republicans could override the governor’s veto if they achieve a two-thirds majority vote in both chambers

Finally, in Alaska, other than state-directed counseling, which includes information intended to dissuade women from obtaining an abortion, there are no restrictions on the procedure. An amendment was added to the state constitution in 1972 that includes the right to privacy and, consequently, abortion. However, this amendment can be changed through a constitutional convention, and residents vote every ten years on whether to hold a constitutional convention. This year, the vote happens again, and the overturning of Roe could incentivize voters to approve a convention. While Republicans control the governorship and senate, the state house is divided between Democrats and Republicans.

In states where Republicans control the state legislature and the governor’s mansion, pro-life legislation should be passed immediately. A handful of states are purple and divided. In these cases, Republicans should seek compromise with more moderate Democrat colleagues and pass the most pro-life legislation possible, given the political environment in that state, as Governor Youngkin is currently doing. Incrementalism will be necessary in purple states for now. In solid-blue states where restrictions on abortion are currently unlikely to be passed, grassroots pro-life activists will have to redouble their efforts to persuade women to choose life. Changing the culture at the state level to convince voters of the value of unborn human life can eventually lead to transforming state policy and shielding the most vulnerable among us.