Barrett Hearings Inspire State Action to Protect Abortion Rights

Republicans jammed through the confirmation of Amy Coney Barrett. Now, abortion rights activists must focus on state legislatures and Congress to solidify abortion rights across the country.

Barrett Hearings Inspire State Action to Protect Abortion Rights
As seen at the Women’s March in D.C. on Oct. 17. (Chandra Bozelko)

With the passing of women’s rights icon Justice Ruth Bader Ginsburg, and Senate Republicans rush to confirm Trump’s nominee Amy Coney Barrett to fill Ginsburg’s seat, federal constitutional protection for the right to abortion health care is at imminent risk.

Mounting evidence shows Barrett is a grave threat to women’s rights, including reproductive rights.

As a law professor at Notre Dame, Barrett was a member of the University anti-abortion group “Faculty for Life.” In 2013, she said at a Notre Dame event that she believes life begins at conception. In a 2015 Texas Law Review article, she opposed the idea that courts should always uphold precedent, referring specifically to Roe v. Wade.  She even opposes contraception access and in vitro fertilization (IVF), spurring strong rebuke from medical professionals.

Fearing Barrett’s confirmation may lead the Supreme Court to end federal protection for abortion rights, activists across the country are mobilizing to secure the right to abortion health care in state law.

A similar threat in 2018 after Trump appointed Brett Kavanaugh to the Supreme Court led to activists to push for and win several new state abortion rights laws. Vermont, Maine, New York, California, Illinois and Nevada all passed laws protecting and expanding abortion rights. Massachusetts repealed the state’s 173-year-old abortion ban that was still on the books but unenforceable because of Roe v. Wade.

But with Trump now poised to make his third appointment to Supreme Court, conservatives will consolidate a 6-3 supermajority of justices who are unanimous in their hostility to abortion rights and the Roe v. Wade precedent.

Barrett Hearings Inspire State Action to Protect Abortion Rights
Outside the Supreme Court on Oct. 12 as the Senate Judiciary Committee hearings begin for the nomination of Amy Coney Barrett. (Victoria Pickering / Flickr)

New Jersey

In response, New Jersey legislators introduced a bill to codify Roe v. Wade into state law, which Governor Murphy publicly supports. The law would remove medically unnecessary restrictions on abortion health care, require most private health insurers to cover abortion, and allow a wider range of health care providers, including physician assistants, certified midwives and other advanced-practice nurses, to administer abortions.

Kaitlyn Wojtowicz, vice president of public affairs at Planned Parenthood Action Fund of New Jersey, told NPR that the law’s goal is to strengthen abortion care access for New Jersey residents as well as patients from other states.

“We do know that there could be a future where New Jersey is the state where folks may travel to [for abortion health care],” said Wojtowicz.


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Massachusetts

The Massachusetts legislature is also taking up legislation to protect and strengthen abortion rights in the state. Introduced in January of 2019, the ROE Act would establish an affirmative right to abortion health care under state law, allow abortion care after 24 weeks in cases of lethal fetal diagnoses, and remove an onerous judicial bypass requirement for minors seeking abortion health care. The law would also establish safety net coverage for people without health insurance.

The bill has been sitting in committee for close to two years while legislators squabbled over the details and then turned to COVID-19 when the pandemic hit.

Barrett Hearings Inspire State Action to Protect Abortion Rights
Outside the Supreme Court during Whole Woman’s Health v. Hellerstedt oral arguments in June 2016. (Wikimedia Commons)

But now, with the threat of Barrett’s confirmation, activists are demanding action on the ROE Act. Bill sponsor and supporter Representative Lindsay Sabadosa reported that one afternoon following the death of RBG, she received an email a minute for about three hours in support of the Roe Act. The massive outpouring of support for the bill has increased its likelihood of passage.

“I feel more confident and optimistic that the bill will move forward,” says Sabadosa.

Court Battles Over Abortion Restrictions

Abortion rights advocates have had some recent successes in challenging abortion restrictions in the courts. A federal judge in Tennessee last week ruled that the state’s 48-hour waiting period law for abortions is unconstitutional. Earlier this year, another federal court struck down Mississippi’s sex-week abortion ban.

But prospects for these cases on appeal are grim. Trump has appointed 216 right-wing, anti-abortion judges to the federal courts. A federal appeals court in Kentucky recently upheld an abortion restriction requiring providers to have admitting privileges with a local hospital and an ambulance service in case of medical emergencies. And numerous abortion cases are headed to the Supreme Court.

Focus on Congress and State Legislatures to Expand Abortion Rights

If Democrats take the Senate and White House, Congress must pass the Women’s Health Protection Act, which would create a federal right to abortion and end medically unnecessary restrictions on abortion, such as unnecessary ultrasounds, medically inaccurate counseling, waiting periods and TRAP laws.

Earlier this month, Biden pledged to make Roe v. Wade “the law of the land.” Reproductive justice activists also want increased access to abortion health care provided by the Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act, which would lift the discriminatory Hyde Amendment and restore insurance coverage of abortion for people enrolled in Medicaid and other federal programs.

Congress should also expand the number of justices on the Supreme Court and appoint abortion rights justices.

The reproductive rights movement has for decades focused the fight for abortion rights in the federal courts. As Republicans jam through the confirmation of Amy Coney Barrett, abortion rights activists must now focus on state legislatures and Congress to solidify abortion rights across the country.

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About

Carrie N. Baker, J.D., Ph.D., is a Professor in the Program for the Study of Women and Gender at Smith College. Her 2007 book The Women's Movement Against Sexual Harassment won the National Women’s Studies Association Sara A. Whaley Book Prize. Her second book, Fighting the U.S. Youth Sex Trade: Gender, Race, and Politics, tells the story of activism against youth involvement in the sex trade in the United States between 1970 and 2015. Baker is the President of the Abortion Rights Fund of Western Massachusetts.