With lawmakers stymied, much of the abortion-rights response is expected to fall to medical and activist groups that are opening abortion clinics near airports and on state borders, setting up channels to distribute abortion pills in states that have banned them or are planning to do so, and raising millions to help patients travel out of state for the procedure.
Democratic officials on Tuesday didn’t articulate a clear strategy for bills or executive actions to shore up abortion rights ahead of the expected June ruling, but rather highlighted the need to harness the outrage to turn out voters in November.
“What happened last night, I am pissed. I am furious,” Kansas state Rep. Christina Haswood said at a Washington, D.C., event on Tuesday. “We can be angry, but we really need your help coming up this election.”
Senate Majority Whip Dick Durbin echoed that message, telling reporters: “The answer is in November.”
The focus on the midterms is a tacit admission that while Democrats hold power — controlling the White House, both chambers of Congress, 22 governors’ mansions and 18 state legislatures — they remain unable in much of the country to meaningfully protect abortion rights.
Lawmakers and advocacy groups on both sides of the abortion fight have assumed ever since the Supreme Court took up Mississippi’s 15-week abortion ban last year that the justices would use the case to overturn Roe v. Wade, a suspicion strengthened by December’s oral arguments on the case. But the draft opinion still came as a shock to abortion proponents.
“Seeing it in black and white is different than being warned for years and decades,” said Elizabeth Nash, interim associate director of state issues at the Guttmacher Institute. “It’s not unexpected, but it’s a gut punch nonetheless.”
Now, with significant government action unlikely, many Democrats are voicing frustration that their own colleagues and the public didn’t mobilize earlier to enact greater protections.
“Nobody believed us,” Sen. Kirsten Gillibrand (D-N.Y.) told POLITICO. “Women have been telling the nation for the last 10 years that these ultraconservative justices always had the ambition of undermining reproductive freedom.”
Though some actions are underway, many appear to be symbolic with little chance of effecting change or protecting reproductive rights. Senate Majority Leader Chuck Schumer is teeing up another vote on a bill that would prohibit states from enacting new abortion bans. Michigan Gov. Gretchen Whitmer filed a lawsuit last month challenging the state’s nearly century-old abortion ban.
Those moves are unlikely to succeed, despite continued broad public support for upholding Roe.
Sen. Joe Manchin (D-W.Va.) made it clear Tuesday that his long-held anti-abortion-rights views are not altered by the possible fall of Roe, meaning Democrats lack even 50 votes in the Senate to adopt abortion rights protections, let alone the 60 they currently need to overcome a filibuster.
“I’m not bashful about where I stand,” Manchin told reporters. “I think I’ve been clear for the last 40 years.”
And while several Democrats responded to the Supreme Court news by calling for the abolition of the Senate filibuster, both Manchin and Sen. Kyrsten Sinema (D-Ariz.) also reiterated that they oppose such a move.
When Democrats held a vote this February on the Women’s Health Protection Act — a bill that would bar states from enacting new abortion restrictions — it got just 46 votes. The party’s efforts to eliminate the decades-old ban on federal funding for abortion also fizzled in the Senate after passing the House, with top Democrats backing down in the face of GOP opposition before it came to the floor.
Because the closely divided Congress has long been unable to pass new abortion restrictions or protections, many progressive advocates said Tuesday that they are instead depending on state and local officials to take action before the Supreme Court issues its final ruling.
“Days like today, kind of feels like the hope is in the states, doesn’t it?” Emily Cain, the executive director of EMILY’s List, said at the group’s annual conference. “As we think about the governors and state legislatures … we’re going to help to make sure they are there to hold the line for women’s reproductive freedom.”
But instead of announcing new ambitious policies to protect access to abortion in the wake of Monday’s news, many Democratic governors in swing states up for reelection this year — including Whitmer, Nevada Gov. Steve Sisolak and Wisconsin Gov. Tony Evers — framed themselves as the only thing standing between their constituents and restrictive abortion laws.
Several passed the baton back to Congress, writing a letter to Democratic leadership Tuesday afternoon that called on the Senate to take action to codify Roe into law.
“It is imperative that Congress acts swiftly to ensure that all Americans continue to have meaningful access to reproductive healthcare and abortion,” the governors wrote in a letter first shared with POLITICO.
Of the 21 states with Democratic governors, a third have already wrapped up their legislative sessions or didn’t meet this year. And many of those states still in legislative session — including Minnesota, Wisconsin, Michigan and Kansas — have GOP-majority Legislatures not interested in protecting abortion rights.
Not all states have been idle, though.
California passed a set of bills to extend legal protections both to state residents and patients coming in from other parts of the country, extend financial assistance to people seeking abortions and better fund the clinics and staff performing the procedure.
New York State Democrats are pushing a bill to establish an abortion access fund, which would be paid for by state taxpayers through a voluntary contribution on their personal income tax returns.
Oregon established a $15 million Reproductive Health Equity Fund, Maryland and Connecticut passed legislation allowing nurse practitioners and physician assistants to perform abortions and Colorado approved a Reproductive Health Equity Act ensuring that pregnant people in the state have the right to choose their own pregnancy outcomes.
Nash, of the Guttmacher Institute, said while she supports enacting statutory protections for abortion where possible, there are other actions states can take to increase access to abortion, including helping to expand the number of abortion providers and clinics in their states, requiring health insurance plans to cover abortion and directly allocating state dollars to help fund abortion-related travel.
States “need to put their money where their mouth is because patients need them,” she said.
Yet with most states unable to meaningfully protect millions of women who will soon be subject to sweeping abortion restrictions, medical and activist groups are filling the void.
Whole Woman’s Health and Planned Parenthood are opening abortion clinics near airports and on state borders to receive travelers from states expected to swiftly ban abortion. Plan C, Aid Access and other groups are setting up channels to distribute abortion pills in states that have banned or plan to ban them, and grassroots and national organizations are raising millions to help low-income patients pay for abortions and travel expenses.
“Abortion funds exist and have always existed to fill a gap that should be filled by a basic social safety net from our government,” Debasri Ghosh, the managing director of National Network of Abortion Funds, told POLITICO.
Ghosh’s group received such a massive flood of donations Monday night that their site crashed, though by Tuesday it had been restored. She said that while the draft opinion was “gutting,” it was what she expected and groups like hers aren’t going to wait on the government to respond.
“People even with Roe intact haven’t had meaningful access to abortion,” she said. “That is literally why we exist. And we know the need has been increasing and will continue to increase.”