Even if Roe is gone, the abortion conflict is far from over

When it comes to abortion, all eyes are currently on the Supreme Court. But in the states, pro-life and pro-choice forces are already shadowboxing about what a post-Roe v. Wade America will look like. 

Two states with abortion on the ballot this week just offered a very different perspective on the shape of battles yet to come. By a 62.1 to 39.1 percent margin, Louisiana amended its constitution to declare that there was no state right to abortion or abortion voting. By contrast, in a closely watched Colorado vote, the state rejected a ballot initiative banning abortion at 22 weeks by a 59.1 to 40.9 percent. 

The two ballot initiatives offer a preview of the intense state-by-state conflicts that will begin as soon as the Supreme Court’s conservative majority eliminates abortion rights. Roe v. Wade might be gone, but the abortion wars will be far from over.

Start with Louisiana. At first glance, Louisiana’s vote simply cements the state’s status as one of the nation’s strongest abortion opponents. In some ways, Louisiana’s ballot initiative looks like a tool to get out the vote. Louisiana State Supreme Court, the body charged with interpreting the state’s constitution, has a strong Republican majority. There is no real chance that Louisiana will recognize a state constitutional right to life any time soon. And besides, since 2006, Louisiana has had a “trigger law” that would ban most abortions as soon as Roe is gone. 

This was not just overkill. Reiterating voters’ opposition to abortion is a way to turn out voters for whom the right to life is the only election issue. That’s easy to understand. The antiabortion movement’s goal — laws banning abortion outright — is within reach for the first time within half a century.

But Louisiana is not clearly a sign of things to come. In practical terms, Colorado mattered more than just any state. The state is the home of one of the few clinics in the country that provide later abortions. If the vote had gone the other way, it would have been that much harder for anyone in the country to get an abortion later in pregnancy. Colorado could have been a bellwether too. Groups like the National Right to Life Committee and Americans United for Life wanted to see how far they could go in purple states after Roe is gone. A win in Colorado might have seemed well within reach. Yes, a majority of Americans think at least some abortions should be legal, but Gallup has found that 65 percent of Americans don’t think abortion should be legal in the second trimester (defined as between 18 weeks and 24 weeks after a patient’s last menstrual period). 

Abortion opponents bet that purple states would sign off on banning late abortions. Then the movement could gradually convince voters that abortion was always wrong. Colorado just proved that bet may have misfired, at least for now.

When you put it all together, what do these ballot measures suggest? While the antiabortion movement may have a clear road to victory in the Supreme Court, the states are a different story. That’s partly because the antiabortion movement is no longer playing on favorable terrain. For decades, Roe has been the law. That meant that states could not criminalize abortion outright — and abortion opponents had little choice but to prioritize incremental restrictions. While polls consistently suggest that Americans don’t want Roe overturned, support for these restrictions runs much higher. Abortion foes could merrily brand their opponents extremists who wanted abortion available on demand, all the way to the moment of birth. 

Of course, Republicans still make this claim (Mike Pence recently leveled this accusation at Joe Biden). But the terms of the conflict have changed. There are already many abortion restrictions on the books. And with a six-to-three conservative super-majority on the Supreme Court, the door will be open for flat bans on abortion. With states like Alabama and Georgia eliminating exceptions for rape and incest, supporters of abortion rights can more easily argue that they represent the mainstream than the extremes. That makes it harder for abortion opponents to make progress in purple states like Colorado. After Roe, it won’t get any easier.

Even within red states, there is no unanimity on what a post-Roe world should look like. States that passed heartbeat laws, criminalizing abortion around the six week of pregnancy, generally did not include rape and incest exceptions. But lawmakers positioned these bills as a litigation strategy, arguing that a “clean” law would maximize the chances of the Supreme Court reconsidering Roe. After Roe, that excuse will be gone. Rape and incest exceptions can be divisive in red states. So can the definition of abortion. Should it include what many abortion foes consider to be abortion-inducing drugs, including the morning after pill and IUDs? So far, states have been adamant that women should not be punished, only doctors. But this issue divides the antiabortion movement too. 

At least 21 states will ban all or most abortions if Roe is gone. But the 2020 vote suggests that the issue will rage on regardless of what the Supreme Court says. In 1973, supporters of abortion rights made the mistake of believing that the court had resolved the issue in their favor once and for all. Nearly 50 years later, it’s hard to miss how wrong they were. Now, abortion foes seem to have the same unmistakable optimism about what the court will do — and what will come next. 

If 2020 is a sign of things to come, it won’t be that easy, and the next 50 years won’t get less heated any time soon.

Mary Ziegler is a law professor at Florida State University, is the author of “Abortion and the Law in America: Roe v. Wade to the Present.”