States' divisions on abortion have widened after Roe was overturned
GOP lawmakers in states with abortion bans already in place are pushing to make them more restrictive, while blue state officials are trying to expand abortion access.
A group of Tennessee Republicans began this year’s legislative session hoping to add narrow exceptions to one of the strictest abortion bans in the country, armed with the belief that most people — even in conservative Tennessee — reject extremes on the issue.
Tennessee law requires doctors to prove in court that they were saving a woman’s life when they performed an abortion. Surely, the lawmakers thought, they could win concessions that would allow doctors to use their good faith judgment about when abortion is necessary to save a woman’s life. But after a key anti-abortion group stepped in, the lawmakers had to settle for a stricter legal standard that moves the needle very little.
Like lawmakers in several GOP-led states who started the year thinking about moderating the nation’s toughest abortion laws, Tennessee's lawmakers found no appetite among their colleagues for loosening the rules.
During the first legislative sessions in most states since the U.S. Supreme Court overturned Roe v. Wade, lawmakers on both sides are dug in. Republicans are moving to make abortion restrictions tougher. Democrat-dominated states are moving to protect access for their residents and, now, for the residents of other states arriving for care.
“Abortion is one of the most stark examples of the political divide between red states and blue states, even when we know that people generally favor the middle on abortion,” said Gretchen Ely, a professor in the College of Social Work at the University of Tennessee.
Last year's overturning of the 1973 Roe decision meant that state laws banning or restricting abortion if such a ruling arrived took effect. Many were met with legal challenges. Currently, bans on abortion at all stages of pregnancy are in place in 13 states and on hold in another four because of court injunctions.
Lawmakers in most states have introduced abortion-related legislation this year. Republican-backed measures include funding for counseling centers that discourage abortion, bans on medication abortions and other restrictions. Democrats' bills include expanding insurance coverage for abortion and knocking back restrictions implemented in the past.
The legislative action comes after voters in six states — conservative, moderate and liberal -- voted in referendums last year and abortion access proponents prevailed in all of them. Polling has shown the public was unhappy with the overturning of Roe even as they also support some abortion restrictions.
But Mary Ziegler, a legal historian at the University of California, Davis School of Law, said anti-abortion groups are anticipating that abortion rights support will gradually diminish.
“There’s a belief that people will be more open to more and more stringent bans the further we get away from Roe v. Wade being the law,” she said.
Kelsey Pritchard, a member of the state affairs staff at Susan B. Anthony Pro-Life America, said those ballot measure losses motivated anti-abortion groups to get their message out more strongly. “It was a wakeup call for how much work we have to do," she said.
The ban currently implemented in Tennessee is among the most stringent. Instead of an exception for abortions to save the life of the woman, it includes an “affirmative defense” for doctors, placing the burden on them to prove an abortion was medically necessary.
Now, a scaled-back proposal is moving through the Legislature. It removes the affirmative defense language but still doesn't grant access to abortions in the cases of “medically futile pregnancies” and lethal fetal anomalies. Doctors warned the new exemption will do little to relieve worries about being prosecuted.
Tennessee Right to Life had already revoked its endorsement of one GOP lawmaker — seen as a key tool for winning over conservative voters — after Republican Sen. Richard Briggs called for changes while admitting that he voted in favor of the state’s so-called trigger ban because he didn’t believe Roe would actually be overturned. Now the lobbying group warned that it could do the same with others who tried to weaken the ban.
"This new amended bill only allows a woman to access an abortion if she’s damn near on her deathbed,” said Democratic Sen. London Lamar, who experienced her own near-fatal pregnancy loss several years ago.
In Kentucky, a Republican bill to allow abortion in the case of pregnancies caused by rape or incest also made no headway.
Other red states are looking to tighten the bans and restrictions already in place.
Florida, which currently bans abortions after 15 weeks, is considering banning them them at six weeks’ gestation — a move backed by Republican Gov. Ron DeSantis, who is expected to announce his candidacy for president in the coming months.
Wyoming recently adopted a ban on abortions throughout pregnancy — though its enforcement was halted last week by a judge — as well as a separate law specifically to bar medication abortions, which are the most common method of ending pregnancies in the U.S.
And South Carolina raised eyebrows when more than 20 GOP lawmakers sponsored a bill classifying abortion as homicide — opening the door for women to face the death penalty, a step no state has yet taken. The bill has since stalled in the House amid backlash, with nine sponsors removing their names as supporters. Instead, lawmakers are advancing an abortion ban with some exceptions.
In blue states, the push to protect abortion access continues.
In liberal Oregon, there are no legal restrictions on when abortions can be provided. But the Legislature is considering a sweeping measure that would allow someone to bring a civil lawsuit against a government agency for interfering with reproductive health rights and also for minors to access certain gender-affirming care services without parental involvement. Dozens of people gave emotional testimony last week on the bill.
With both chambers of the Minnesota legislature now under Democratic control, the state adopted a law to codify abortion rights that were protected under a 1995 state Supreme Court decision. Lawmakers have also pushed ahead with a measure to prohibit enforcement of laws, subpoenas, judgements or extradition requests from other states against people who get, perform or assist with abortions in Minnesota.
Several other blue states enacted similar measures last year through laws or executive orders, including Hawaii, whose governor signed one last Wednesday.
That brand of protections came largely in response to a 2021 Texas law that relies on private lawsuits to enforce abortion bans.
Ballot measures to approve or ban abortions could also go to voters this year or next in several states, including Maryland and Missouri.
But in at least one case, anti-abortion groups are playing a long game with those efforts.
In Ohio, they're trying to keep a ballot question to guarantee the right to abortion off the ballot in November — all while trying to get another question on the ballot. That question would amend the state constitution to require ballot measures have at least 60% approval to be adopted, rather than the current standard of more than half, making it harder for abortion rights amendments in the future to pass.