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Power to the States: Preparing for a Post-Roe America

On January 22, 1973, the Supreme Court issued one of the most consequential decisions of the century: Roe v. Wade. Crafting an argument based on the implicit right to privacy, Justice Blackmun made history by declaring abortion legal under the Constitution. In the 45 years since, many states have passed laws restricting abortion, and dozens of cases have been appealed to the Supreme Court that have honed (and usually narrowed) the right to abortion. With the recent confirmation of Justice Kavanaugh, the possibility of a repeal seems within reach.

In order to counteract this possibility, pro-choice Americans need to be proactive at the state level. In the event that Roe v. Wade is repealed, jurisdiction over the issue would be granted to each individual state. Even though Roe is still the law of the land, four states have explicit “trigger laws” that declare abortion illegal the moment Roe is overturned on a federal level. Nine others have unenforced abortion bans still written into law from before Roe was decided, and seven have expressed intent to heavily restrict abortion in the absence of Roe. Meanwhile, nine states have already explicitly protected the right to choose in state law. This leaves 23 states that have yet to broadcast whether they would move to protect or restrict the fundamental right to abortion if given full control over the issue. A focus on electing pro-choice legislators at the state level is imperative for preserving the right to choose if the Supreme Court were to overrule, or otherwise gut, Roe.

When discussing the implications of elections on policy, it’s important to recognize that voting is complex. Constituencies must take many different public policy issues into account. Economic worries, terrorism, immigration, dissatisfaction with the government, and a host of other issues hover over voters when they enter the ballot box. In fact, according to a 2018 Gallup poll, only 2 percent of Americans rate abortion as “the most important problem” facing our country today. This relative lack of interest means that pro-choice activists must work even harder to convince residents that they should vote for pro-choice legislators when casting their ballot. Even though 50 percent of Americans believe abortion should be legal under certain circumstances, and another 29 percent believe that abortion should be legal under any circumstances, abortion views are often dismissed over issues that are deemed “more pressing.” However, pro-choice advocates of all types must protect Roe now, at the state level, in order to protect the right to abortion regardless of future federal rulings. This may be complicated due to the large disparity between those who believe abortion should be “legal under certain circumstances” and those who believe it should be “legal under any circumstances.” As such, pro-choice advocates must be cognizant of the threshold at which Americans in a particular state find abortion to be reasonable and tailor legislation accordingly.

"A focus on electing pro-choice legislators at the state level is imperative for preserving the right to choose if the Supreme Court were to overrule, or otherwise gut, Roe."

Opinion on abortion differs sharply between people of different religious affiliations, ideological leanings, ethnicities, and levels of education. However, views of abortion are relatively consistent by gender and age. Fundamentally, the debate over abortion isn’t about pitting pro-choice Democrats against pro-life Republicans, and it should not be treated as such. As abortion is not simply a partisan issue, distinguishing between “Democrats” and “pro-choice legislators” is important, especially in states like Rhode Island. Rhode Island is one of only eight states with a Democratic “trifecta,” meaning that the governor’s mansion, state House of Representatives, and state Senate are all controlled by Democrats. In a state with so much Democratic power, the right to choose would usually be soundly protected, considering 76 percent of Democrats believe abortion should be legal in all or most cases. Yet Rhode Island is more ideologically diverse that it superficially appears. Other factors often influence ideologies; for example, 42 percent of Rhode Island residents identify as Catholic. Rhode Island Right to Life, a pro-life group, has endorsed the three top officials in the state’s House of Representatives and Senate. Furthermore, although Rhode Island is overwhelmingly liberal, only about one-third of state legislators publically identify as pro-choice.

Rhode Island presents a ripe opportunity for pro-choice legislative action. Public opinion on abortion is sharply at odds with state legislators. Sixty-three percent of Rhode Island residents believe abortion should be legal in all or most cases, similar to Democratic strongholds like Oregon and New York. If campaigns representing pro-choice potential legislators make a more concerted effort to communicate these candidates’ stances on abortion, especially in Democratic primary races when pro-choice and anti-choice Democrats are in direct competition, constituents will be able to elect the legislators who most closely match their beliefs. A change in leadership within the Rhode Island legislature would also aid the state’s pro-choice movement. When asked about the potential overturn of Roe, State Speaker of the House, Nicholas Mattiello, remarked, “I don’t think it’s a real concern. And I just remind folks that this is a very divisive issue on both sides. And you know, it is an issue that would utilize all of the oxygen in the room.” Mattiello has also suppressed efforts to introduce legislation, such as the Reproductive Health Care Act (RHA), to the General Assembly that would codify abortion rights into state law. The RHA has been introduced in the past two legislative sessions but languished in committee. Advocates plan to reintroduce the measure in 2019. With more pro-choice officials in the legislature, Rhode Island could easily pass a preventative measure to protect the right to choose in the case of a Supreme Court overruling of Roe.

New Hampshire presents a similarly opportune legislature for pro-choice advocates to target for encoding abortion rights. Though usually considered a battleground state for presidential elections, New Hampshire is currently one of 26 states with a Republican trifecta. To break the trifecta, pro-choice Democrats would need to gain two state Senate seats and twenty-two state House seats to control the state’s Congress. New Hampshire’s popular Republican governor will likely keep his seat, considering his 61 percent approval rating from this August. Four hundred individuals serve in New Hampshire’s lower house, so 8 percent of seats would have to change parties in order for Democrats to be in control of the state House. Public opinion in New Hampshire largely sides with abortion advocates. Sixty-six percent of New Hampshire residents believe that abortion should be legal in all or most cases, which is a higher percentage than even California or Washington. In the next few election cycles, Democrats might obtain a majority in New Hampshire’s legislature, which would reflect the high concentration of pro-choice residents in its electorate. Advocates must not lose the urgency of their cause even if they win legislative victories this November; pro-choice groups must continue lobbying state legislatures, especially in states like New Hampshire, to pass favorable legislation in the future.

One major way that pro-choice Democrats can transfer energy to state legislative races is by contesting more seats. In Florida, this increased competition is already starting; the Tampa Bay Times reports that “Democrats are competing in significantly more legislative races than four years agoat least 15 more Florida House seats and twice as many Florida Senate seats.” Rather than leaving seats open to Republican incumbents, Democrats are mobilizing to make every race as competitive as possible. Though lacking in fundraising, these candidates are working to energize their districts and capitalize on a national blue wave to install more Democratic legislators in Tallahassee. Again, abortion is not simply a Democrat versus Republican issue, but the vast majority of the Democrats running in Florida are pro-choice, which is consistent with the Democratic party’s platform. Florida is among the 23 states that have not broadcast opinions on abortion law in the absence of Roe. Therefore, its official stance on abortion could be heavily influenced by who is elected in the upcoming midterms. In Florida, 56 percent of residents believe abortion should be legal in all or most cases. While this is not an overwhelming majority, it is a majority that would nonetheless be expected to support pro-choice legislation in the future.

While Roe v. Wade fundamentally protects a woman’s right to obtain an abortion in the United States, this precedent has been challenged almost yearly and now appears vulnerable in the face of a solidly conservative Supreme Court. The legality and morality of abortion are controversial in modern day America, but 58 percent of Americans believe abortion should be legal in all or most cases. Without much ability to protect this right through the national court system, pro-choice advocates must use other forums  to preserve the right to choose. While people tend to pay little attention to state legislatures, pro-choice proponents must focus on supporting like-minded individuals for positions in these legislative bodies in order to protect abortion in the possible absence of Roe.

Photo: “Pro-Choice and Anti-Choice”

About the Author

Zander Blitzer '22 is a Staff Writer for the US Section of the Brown Political Review. Zander can be reached at