Jurisprudence

The Ironic, Unintended Consequence of SCOTUS’s Plan to Overturn Roe

It’s suddenly far easier to access abortion in many parts of the country.

A huge crowd of people marches in downtown Washington with signs bearing slogans such as "Bans Off Our Bodies"
Abortion rights demonstrators march down Constitution Avenue in Washington on Saturday. Anna Moneymaker/Getty Images

The Supreme Court is poised to overturn Roe v. Wade this summer, transforming a constitutional right into a policy dispute subject to the whims of each state’s political process. Republican-controlled legislatures—as many as 22 of them—have already teed up abortion bans that will spring into effect once Roe falls. But what about blue and purple states, where a majority of the country resides? These states are about to become the chief battleground for reproductive freedom. And while the post-Roe future is not even here quite yet, progressives are doing a remarkably good job preparing for the next phase of the fight.

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Indeed, one irony of Roe’s demise is that it has prompted many of these states to make abortions easier and cheaper to obtain. The Supreme Court’s hard-right turn has had the unintended consequence of making abortions much more accessible in many parts of the country.

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Start with the blue states, whose legislatures have, after years of inertia on this issue, finally snapped into action to expand abortion access. These jurisdictions will receive a flood of new patients when Roe goes—and with them, at least two new challenges. First, these states’ health care systems will need to accommodate the huge surge of new patients. Second, they will have to contend with red states’ efforts to reach beyond their own borders to punish patients and providers in other jurisdictions.

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On the first front, Democratic-controlled legislatures are racing to expand access to reproductive health care—a hugely popular agenda among their base. Sixteen states and the District of Columbia have already codified abortion rights, but some are going further to make that promise a reality. In the last few months, Connecticut, Delaware, Maryland, and Washington state have passed legislation allowing a broader range of medical providers to prescribe or perform abortions, such as advanced practice registered nurses, nurse practitioners, nurse midwives, or physician assistants. They’ve joined about a dozen states that already permit health care providers other than physicians to help patients terminate a pregnancy. The goal is to create a veritable army of practitioners who can serve the influx of new patients from conservative jurisdictions.

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[Read: Four Ways Blue Cities in Red States Can Protect Abortion Access Post-Roe]

In many of these states, the problem is not any legal obstacle, but lack of training: There is a chronic shortage of medical professionals who know how to perform abortions. (Medical schools are not required to teach abortion care, and those in red states may soon be forbidden from doing so.) Blue states are seeking to remedy this problem by funding new training programs to ensure that qualified professionals can actually serve patients in need. New York is doling out $25 million to help clinics expand their capacity by, among other things, training new providers. Oregon has pledged $15 million, while California is planning to hand out $40 million. (The Maryland legislature created a $3.5 million fund to train new providers, but Republican Gov. Larry Hogan has withheld the money.) A new California law also bars private insurers from demanding copays for abortion care, and the state’s forthcoming abortion fund will cover out-of-pocket costs for patients on Medicaid.

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Blue states’ efforts to help out-of-state patients, however, will only be successful if those patients can access care legally. And red-state lawmakers are already considering measures that would punish individuals who travel across state lines to terminate a pregnancy, as well as those who serve them. These laws could authorize civil suits or criminal charges against providers who serve patients from conservative states, as well as those who “aid or abet” them. A new crop of “fetal personhood” bills would grant legal rights to fetuses, deeming their termination “homicide” under state law and subjecting providers to serious legal jeopardy.

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Progressive jurisdictions are rising to the challenge. In May, Connecticut passed a sweeping law that allows targets of anti-abortion lawsuits to countersue and collect both damages and attorneys’ fees. The measure also bars state officials from investigating health care professionals who are accused of violating other states’ abortion restrictions as long as they adhere to Connecticut law. And it prohibits the governor from extraditing an individual to another state for performing or “abetting” an abortion that’s legal in Connecticut. Washington state has passed similar legislation, and other liberal jurisdictions, including the District of Columbia, will soon follow suit.

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In purple states, the situation is more complicated. They stand little chance of enacting pro-choice bills as long as Republicans control the legislature, so Democrats have had to get creative. The most prominent success story so far is Michigan. Democrats hold the governorship, as well as a majority on the state Supreme Court, yet the GOP dominates the legislature. So there is no real chance the political branches will repeal a 1931 abortion ban that’s still on the books—and will become enforceable once more in Roe’s absence.

Gov. Gretchen Whitmer has thus taken a creative approach: In April, she asked the state’s left-leaning Supreme Court to declare that the Michigan Constitution guarantees a right to abortion. If it agrees, the 1931 ban would remain unenforceable after Roe is overturned. And, in fact, abortion might become more accessible in Michigan, as the state Supreme Court may well strike down a series of existing, draconian restrictions that were not previously challenged under the state constitution. Abortion advocates have also challenged the 1931 law in a separate suit, and last week, a Court of Claims judge barred its enforcement—a decision the Democratic attorney general will not appeal.

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The route to restoring abortion rights in other purple states will be even more circuitous. In Arizona, for instance, the governorship, legislature, and judiciary are in Republican hands after Republicans packed the state Supreme Court to create a conservative majority. So activists have filed a ballot initiative that would amend the state constitution to guarantee a “fundamental right to reproductive freedom.” They’ll need to collect 356,000 valid signatures by July 7 to get the amendment on the ballot, a grueling, uphill climb. If they prevail, though, abortion will become vastly more accessible in Arizona than it is today, as the amendment would likely invalidate a slew of stringent restrictions that the courts have allowed even under Roe.

This is the irony of our current moment: The most immediate impact of the Supreme Court’s imminent assault on abortion rights has been … an expansion of abortion rights. Americans in much of the country have greater access to reproductive health care than ever before. Blue states that didn’t bother updating their abortion laws for decades are responding to massive Democratic majorities in favor of reproductive freedom. They have snapped into action, countering red-state restrictions at long last. The result will be an ever starker and more combative divide between red and blue America.

Read more of Slate’s coverage on abortion rights here.

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