How States Can and Should Protect Abortion Rights and Access

For nearly 50 years, Roe v. Wade has guaranteed that abortion is legal throughout the U.S., but individual state policies have determined whether abortion care is in fact accessible or difficult, affordable or expensive, stigmatized or not. Looking ahead, individual state laws will be paramount to securing abortion rights and ensuring abortion access in the U.S.

Many states already have constitutional provisions or statutes that will ensure abortion remains legal in those states regardless of the Supreme Court’s decision. (See where your state stands in this digital tool, “What If Roe Fell?”) But the need is urgent for more protections at the state level.

Policies supporting abortion rights and access can be pursued in myriad ways. Reform can originate from voters themselves via voter-initiated ballot initiatives or through the legislative process. Protections can be built into new statutes or constitutional amendments; medically unnecessary restrictions and bans can be repealed. To be clear: Every state has the power to enact laws and policies that protect their residents—as well as anyone who travels to their state to access abortion care. And an increasing number are doing just that.

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If Roe v. Wade were weakened or overturned, abortion rights would be protected in less than half of the U.S. states and none of the U.S. territories. (The Center for Reproductive Rights)

Proactive Ballot Measures and Legislation

In 2022, voters in Vermont will decide whether to amend their state constitution to protect reproductive freedom including, but not limited to, abortion. The Reproductive Liberty Amendment would ensure that Vermonters can choose for themselves whether and when to become a parent, use temporary or permanent birth control, or seek abortion care.

Currently, voters in Michigan are gathering signatures to place on the ballot an initiative that would enshrine reproductive freedom in the Michigan constitution. The Michigan initiative involves the right to make and carry out decisions without political interference about all matters relating to pregnancy, including birth control, abortion, prenatal care and childbirth. 

Both initiatives recognize that individual decision making around all pregnancy outcomes, including abortion, should be encouraged and protected.

State statutes that protect abortion rights are another avenue. In recent years, numerous states have passed laws codifying the right to abortion, including Illinois, New Jersey, New York and, most recently, Colorado. The Reproductive Health Equity Act (RHEA) protects reproductive rights as fundamental rights in Colorado and respects individual decision-making regarding contraception and abortion.

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On a day of national demonstrations in response to a leaked Supreme Court draft showing a majority of justices favor overturning Roe v. Wade, New Yorkers protest in favor of abortion rights on May 14, 2022 in Brooklyn. In recent years, New York joined several other states in passing laws codifying the right to abortion. (Andrew Lichtenstein / Corbis via Getty Images)

Paving the Way for Providers

A critical element to abortion access: enabling as many trained providers to serve as many communities as possible.

In recent years, more and more states have repealed or replaced laws requiring that only physicians can perform abortions to allowing advanced practice clinicians (APCs)—which includes certain nurse practitioners and physician assistants—to do so as well, acknowledging that is within their scope of practice. In some states, APCs provide medication abortion; in others they also provide procedural care.

In 2022, Washington and Maryland each passed laws enabling APCs to provide abortions in their states. Building on an opinion from the Washington’s attorney general, the law there went beyond APCs; it also changed its state laws to be gender neutral to protect and provide for the reproductive health care needs of transgender, non-binary, and gender non-conforming people. Maryland’s law allows APCs to provide abortion while also creating support for clinical education in abortion care—as two ways to maximize the number of qualified providers.

Empowering Young People

States hostile to abortion rights have a long history of enacting restrictions that are uniquely harmful to young people.

In late 2021, Illinois took the positive step of repealing its longstanding parental notification law. The law also created a youth-focused working group to identify resources in education, housing, employment, food access and childcare. Importantly, young people themselves will be among the members of the working group—a real step forward in respecting and elevating their experience and autonomy.

Making Abortion Affordable

States can increase abortion access by helping with the cost—which poses a tremendous barrier for many.

Some states require private insurance plans to cover abortion care and provide funding through state Medicaid programs. In 2022, California and New York strengthened their requirements for private insurance coverage. Oregon just approved the addition of $15 million to the Oregon Reproductive Health Equity Fund to respond to the logistical needs of state residents and others who travel to Oregon for care.

Countering Clinic Harassment

Finally, states can address clinic harassment, which has long posed disruption and danger.

Maine recently joined a small number of states that enforce medical buffer zones. Maine’s law prevents individuals from intentionally blocking entrances and exits, harassing patients, or making noise that prevents patients inside the clinic from hearing medical information.

Take Action

What proactive solutions could help people in your state? Reach out to your local and state elected officials and encourage them to introduce, support and advance legislation and policies that protect abortion; ensure an adequate number and mix of providers; respect the dignity and autonomy of young people; provide financial support through insurance mandates and other funding; and allow people to access medical care without harassment and intimidation.

Abortion rights should never depend on someone’s zip code. Each state must do its part to ensure legal and more equitable access to abortion care.

Care about reproductive health, rights and justice? We do too. Sign Ms.’s relaunched “We Have Had Abortions” petition—whether you have had an abortion, or stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion. (Or go back to the “Beyond Roe” essay collection.)

About

Elisabeth Smith (she/her) is the director of state policy and advocacy in the U.S. at the Center for Reproductive Rights and is responsible for developing, implementing and managing the Center’s reproductive rights policy initiatives and strategies aimed at moving proactive policy strategies forward and preventing abortion restrictions in the states.