2018 Was Hostile Year for Reproductive Rights. Will 2019 Bring More of the Same?

Despite the 80 proactive reproductive justice measures passed while state legislatures were in session this year, the overall trend from 2018 continues to be harmful measures designed to reduce or eliminate access to federal and state-funded family planning services while further restricting abortion care.

Reproductive health research nonprofit the Guttmacher Institute has designated 22 states as “hostile” or “very hostile” to abortion rights heading into 2019. In 2000, only 7 percent of women aged 13-44 (those deemed to be of reproductive age) lived in states considered hostile or very hostile to abortion. In contrast, nearly half — 46 percent, or 31 million — live in hostile or very hostile states heading into 2019.

The currently hostile state of Ohio has sent yet another “heartbeat bill” — which would ban abortion at six weeks (before many people even know they’re pregnant) — to the governor’s desk, where it awaits his signature. Should he sign, Ohio would be the last state this year to move its designation from “hostile” to “very hostile.”

Brigitte Amiri, deputy director of the American Civil Liberties Union’s (ACLU) Reproductive Freedom Project, characterized Ohio’s move as an “orchestrated” attempt by conservatives to “push abortion out of reach.”

“This shameless attempt to outlaw abortion is part of their overall strategy to take direct aim at Roe v. Wade after the change in the Supreme Court and after years of pushing measures that chip away at the right to abortion,” Amiri said in a statement after passage of the bill. “But women’s lives and our right to decide whether to have an abortion is not a political game; women and families suffer when abortion is pushed out of reach.”

Ohio was not the only state to propose or enact unconstitutional legislation that either bans abortion outright, or limits it so severely as to essentially place it completely out of reach. Guttmacher characterizes Iowa’s currently enjoined heartbeat ban as “the most extreme anti-abortion measure adopted this year” due to the severely limited window. Louisiana and Mississippi both approved measures banning abortion at 15 weeks. Mississippi’s measure was struck down in district court in November, but Louisiana’s admitting privileges law (very similar to the Texas law which led to Whole Woman’s Health v. Hellerstedt being heard before the Supreme Court) was upheld in September by the Fifth Circuit Court. Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement following the decision that the Center “will take every legal recourse to ensure that this unconstitutional law does not take effect.” The next step is appealing to the newly anti-abortion Supreme Court.

National Latina Institute for Reproductive Health Executive Director Jessica González-Rojas described how it feels to be part of the communities most affected by these laws while watching the Supreme Court (and district/circuit courts) shift so quickly.

“What I will remember most about 2018 is that in the face of continued attacks on our communities, women of color across this country boldly stood up against injustice: raising our voices in opposition to Brett Kavanaugh’s Supreme Court confirmation, bravely sharing our stories and running for elected office,” González-Rojas told Truthout. “Extremist politicians emboldened by the Trump administration continued their racist, xenophobic, and misogynistic attacks on women, people of color and immigrants in our country. … We know these types of restrictions have the greatest impact on people of color and marginalized communities. As we head into 2019, [reproductive justice advocates] remain committed to our fight for fundamental human rights and health, justice and dignity for all people.”

While advocates like Amiri, Northrup and González-Rojas continue to fight individual battles on the ground as they come, legislation and other challenges continue to pile up. Guttmacher’s analysis characterizes the current decade’s state-based anti-abortion laws as part of an overall strategy: to nullify Roe v. Wade and thus eliminate federal protections for abortion up until the point when a fetus becomes viable (can survive outside the womb). As Truthout previously reported, only nine states explicitly protect the right to abortion; most rely on or reluctantly concede that authority to federal precedent. If Roe goes, the outlook for the majority of those living in this country is bleak.

According to Guttmacher, the case that gives the Supreme Court the chance to nullify Roe may already be on its way, as challenges in recent years continue to wend their way through the system. Two, in particular, are worth watching. From Guttmacher’s year-end analysis:

Indiana has asked the Court to uphold a state law that bans abortion for purposes of race or gender selection or genetic anomaly, or procedures based on the fetus’s color, national origin or ancestry; the law also includes unnecessary and burdensome requirements related to the disposal of fetal tissue following an abortion. Similarly, Alabama has declared its intention to ask the Court to review the state’s ban on the most common method of abortion used after 12 weeks of pregnancy [dilation and evacuation].

Truthout described the 2016 Indiana law signed by then-Governor Mike Pence as “A Blueprint for Attacks on Rights Nationwide.” Heading into 2019, we’ll get the chance to see how successful that blueprint will be. As Alabama’s law is more straightforward with fewer components, it’s possible it will pull ahead of its northern competitor in the race to the Supreme Court. Whether Chief Justice John Roberts and his conservative cohorts choose to hear both, neither or either — or another as-yet-to-be-identified state restriction — remains to be seen. Court watchers can guess, but ultimately it’s up to the individual whims of those on the bench. Only four “yes” votes are required to accept the 100-150 of the approximately 7,000 review requests the Court receives annually.

In a recent teleconference, Jennifer Dalven, director of the ACLU Reproductive Freedom Project, urged people not to focus only on activity or potential activity at the Supreme Court level.

“We’re now facing the culmination of a coordinated effort by the anti-abortion movement over the decades to end legal abortion across the country, advancing restriction by restriction, state by state,” said Dalven. “Some of the efforts will come in the form of attempts to expressly overrule Roe, like we’re seeing in Ohio. But, it’s critical to remember that other restrictions can make abortion as good as illegal for millions of women.”

Not to be forgotten, state legislators weren’t the only ones to impose additional abortion restrictions this year. Voters in Alabama and West Virginia, respectively, enacted a “personhood” statute (giving an embryo equal status with a human being) and stripped state Medicaid funding for abortion. There’s no reason to expect these citizen-initiated measures will end with those two anti-abortion victories.

New Year, Poised to Be Same as the Old Year

The Supreme Court isn’t the only judicial arena that matters; of the 1,760 federal justices, 857 are appointed by the president and the Trump-Pence administration inherited nearly double its predecessor at 103 vacancies.

NARAL Pro-Choice America has more than 20 judicial nominees rated as anti-choice awaiting confirmation as Trump makes good on his campaign promise to stack the courts in the hopes of nullifying Roe v. Wade. This means potential trouble as challenges to unconstitutional state abortion restrictions wend their way through the circuit courts: Any one of which could wind up as the chance for a 5-4 anti-choice Supreme Court to end federal abortion protections.

In early December, California State Senator Connie M. Leyva (D-Chino) made good on her promise to reintroduce the College Student Right to Access Act following the outgoing governor’s indefensible veto in September. Governor-elect Gavin Newsom has the opportunity to listen to his constituents and provide medication-based abortion care at on-campus health service providers for the 238,000 students of the California State University and University of California systems.

“This bill will ensure that once a student has decided to end a pregnancy, they will not be forced to go off campus and face barriers such as additional cost, traveling long distances, or even missing class or work to get the care they need,” Levya said in a statement.

In the same statement, associate professor of obstetrics, gynecology and reproductive science at the University of California, San Francisco, Ushma Upadhyay, explained, “Delays in affordable, safe and early abortion care interfere with the academic success and well-being of students.”

Much of the legislative activity carrying over from 2018 into 2019 is less hopeful. Oklahoma State Senator Joseph Silk (R-Broken Bow) pre-filed the “Abolition of Abortion in Oklahoma Act,” in an overt attempt to end legal abortion. Uninterested in hiding behind language like “fetal personhood” or “heartbeat bill,” Senator Silk’s legislation would criminalize abortion providers as felons facing the possibility of life in prison. His cohorts in Missouri, Texas and South Carolina are already pushing related legislation to put the health of the embryo or fetus ahead of the pregnant person.

Moreover, the federal government agencies whose directors are appointed by the current administration will continue to be wild cards as recent attempts to roll back access to reproductive health care on all levels play out.

With all of this happening at once, reproductive justice advocates are stretched thin, but already preparing for what the new year may bring.

“Despite the relentless attacks on reproductive rights, this remains true: Women need access to the full range of health care, including birth control and abortion,” Fabiola Carrión, senior attorney for the National Health Law Program, told Truthout.

“The administration’s attacks on Title X, the birth control mandate and abortion coverage make it harder for women to be healthy, interfere with personal decision making and send a clear message about whose rights are protected in this country,” Carrión said. “These fights won’t be won in a day, or in a year, but we can look ahead to change that is possible and a time when all people can get the care they need.”