The Republicans are Accelerating the War on Abortion Rights
When three red states finalized severe restrictions on abortion over consecutive days last week, they highlighted the GOP’s rising militancy on the issue – and the political and legal calculations underpinning it.
Separate actions last week in Oklahoma, Florida and Kentucky made clear the red state drive to retrench, or eliminate, access to abortion is escalating as the Republican-appointed Supreme Court majority nears a decision, expected in late June, in which it is widely anticipated to overturn Roe v. Wade, the landmark 1973 decision that established a nationwide right to abortion.
The abortion restrictions these states approved last week all denied exceptions for victims of rape or incest – a provision that was once a common feature of conservative anti-abortion proposals but has been jettisoned almost completely in the wave of new restrictions approved since 2021. The Oklahoma legislation banned nearly all abortions from the moment of conception and imposed severe penalties on doctors who perform them, including up to 10 years in jail. The Kentucky bill, continuing an offensive already underway in several other red states, prohibited state residents from obtaining medication abortion through the mail, as the federal Food and Drug Administration authorized late last year.
Taken together, the sweeping bills finalized last week show how the sympathetic signals from the Republican-appointed Supreme Court majority are changing the strategy of red states. In earlier legislative sessions, Republican-controlled states generally had either passed abortion restrictions designed to provide a test case the Supreme Court could use to overturn Roe or had approved bills crafted narrowly enough that they hoped they could survive legal challenges while Roe remained the law, says Mary Ziegler, a Florida State University law professor who studies the history of abortion law.
But after former President Donald Trump’s appointments of Brett Kavanaugh and Amy Coney Barrett established a clear conservative majority on the court – and particularly since that majority signaled during last year’s hearing on a challenge to Mississippi’s 15-week abortion ban that it is inclined to retrench or entirely scrap Roe – the red states are removing the veils to more clearly indicate where they will take the law if the court allows them.
“We are seeing this pattern because the Supreme Court’s conservative majority has signaled that it is ready to reverse Roe,” Ziegler told me in an email. “Now, we are getting a sense of what red states really want to do when Roe is gone. That is why we are seeing bans from fertilization – as in Oklahoma – and laws that focus on abortion pills, which will be crucial in determining whether bans will be effective.”