The Onslaught of Abortion Bans in America: What you need to know and why 

For the first time in 50 years, half of our country could lose access to abortion care. Due to decades of carefully orchestrated state-level action by conservative groups, we are now seeing an unbelievable onslaught of abortion bans. Two states – Texas and Idaho – have sidestepped the federal protections of Roe v. Wade to ban abortion, and 20 additional states are poised to overturn basic abortion protection the instant federal protection ends.

And with the US Supreme Court and the Texas Supreme Court now effectively ending any hope that the Texas abortion ban will be overturned, the pathway is paved for more and more extreme legislation. This makes investing in abortion sanctuary states, like Washington, essential.

What does this mean for Washington state?

Because of the extreme Idaho abortion ban and the likely overturning of Roe v. Wade this June, Washington state is expecting an estimated 385 percent increase in patients seeking abortion care in our state. Abortion clinics in Washington have already seen an increased wait time for abortion care and an escalation of clinic harassment from extreme anti-abortion groups.

Washington state is in an important position and must prepare to receive patients with compassion and care and must increase our support to already over-taxed providers and independent clinics. We must also invest in grassroots advocacy groups to ensure we continue to pass and maintain abortion protections and elect progressive leaders at all levels of government.

The following provides an update on the state of key abortion bans across our country including a list of references for more information.

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States that have passed abortion bans into law

TEXAS: On September 1, 2021, Texas passed the most extreme abortion ban in the country at the time to block abortions after six weeks of pregnancy. Senate Bill 8 was initially upheld by the Supreme Court in December and, on March 11, 2022, the Texas Supreme Court shut down the final appeal to overturn the deeply harmful policy. 

• The passage of the Texas abortion ban demonstrates the willingness of anti-choice lawmakers to take extreme action to prevent legal access to essential healthcare.
• Senate Bill 8 bans abortions before most people know that they are pregnant. This means that 85%-90% of abortions previously provided in Texas before September 1 are no longer eligible because they were taking place after six weeks.
• Unlike other abortion restrictions, Senate Bill 8 makes no exception for rape or incest.
• Most disturbingly, Senate Bill 8 authorizes citizens to enforce it. The vigilante component of this bill not only allows individuals to sue anyone suspected of aiding and abetting (or even intending to aid and abet) a post six-week abortion but creates a reward structure with a minimum of $10,000 for every case won. The burden of proof in this case lies heavily on the defendant.
• This vigilante provision is also precisely why the bill is difficult to overturn in court. Because Senate Bill 8 establishes ‘aiding and abetting’ abortion as a civil violation rather than a crime and it forbids state agents from enforcing it, the bill cannot be challenged for its constitutionality.
• This is because the doctrine of sovereign immunity (i.e., that the government cannot be sued without its consent) holds that individuals can only sue a specific official or agency that enforces the specific law. The way that Senate Bill 8 is written, it explicitly prevents any “officer or employee of the state or local governmental agency” from enforcing it.
• This underhanded tactic has allowed conservative-leaning courts to essentially wash their hands of its unconstitutionality. The US Supreme Court declined to hear the case and the Texas Supreme Court delt the final blow by claiming that the bill’s language “effectively tied their hands.”
• This is a devastating blow to abortion care providers and people seeking abortions in Texas, and a dangerous precedent for the more than seven copy-cat bills showing up across the country, including neighboring Oklahoma.
• Since the ban went into effect on September 1, there has been a 60 percent decrease in abortions in Texas but some clinics in nearby states have seen an estimated 800 percent increase in demand for abortion.

IDAHO: On March 14, 2022, Idaho became the first state to officially copy-cat the Texas law by passing a bill banning abortions after six weeks of pregnancy. The bill specifically allows “family members” of a fetus to sue, creating the space for dangerous repercussions in harmful relationships.

• Senate Bill 1309 is the first bill to pass that explicitly copies Texas Senate Bill 8.
• However, it explicitly authorizes ‘family members’ of the fetus to file civil lawsuits against anyone who performs an abortion for up to four years after the procedure.
• The incentive structure mirrors Texas but increases the minimum reward to $20,000 for a successful suit and likewise shields it from a constitutional challenge.
• There is no limit to how many family members can sue, and it does not exclude family members of a rapist from suing.
• Idaho lawmakers applaud the Texas Supreme Court’s decision. As the co-sponsor of the bill, Rep. Steven Harris, said, “Texas’ clever, private course of action did good.”

States with proposed abortion ban legislation

OHIO: On November 2, 2021, Ohio followed Texas’s lead and introduced an even more extreme bill, House Bill 480, which is a total abortion ban.

• House Bill 480 was based on Texas’s ban and was co-sponsored by more than half of Ohio House Republicans. 
• Like the Texas Senate Bill 8, Ohio House Bill 480 authorizes citizens to file civil lawsuits against anyone who performs an abortion or aids and abets the performance of one. 
• The incentive structure mirrors Texas, with a minimum reward of $10,000 for a successful suit and likewise shields it from a constitutional challenge. 
• Ohio House Bill 480 also makes no exception for rape or incest. 
• Unlike Texas Senate Bill 8, Ohio House Bill 480 includes a complete ban on abortion at any time throughout the entire state. 

FLORIDA: On March 3, 2022, Florida passed a ban on abortion after 15 weeks modeled after the abortion law in Mississippi that the Supreme Court is poised to uphold this summer.

• Florida’s new abortion ban reduces the time frame that a pregnant person can receive an abortion, from 24 weeks down to 15 weeks of pregnancy.
• While it contains exceptions for cases of a fetal abnormality or to save the pregnant person’s life or to prevent their serious injury, it has no exception for rape, incest, or human trafficking.
• Conservative lawmakers framed the 15-weeks abortion ban as a ‘compromise’ between their current protections and a Texas-style bill.
• This bill will also impact the many pregnant patients who come from other southern states to Florida to seek abortion care.

MISSOURI: On March 10, 2022, Missouri proposed an anti-abortion amendment modeled after the Texas abortion law, but it also seeks to prevent patients from seeking abortion care outside of Missouri.

• The amendment on House Bill 2012 authorizes citizens to file civil lawsuits against anyone who performs or aids and abets an abortion.
• It extends that authorization to include lawsuits against anyone who performs or aids and abets an abortion on a Missouri resident outside of Missouri.
• Luckily, lawmakers cannot impose laws that extend beyond their jurisdiction and cannot punish women for seeking legal abortion care in another state where that right is protected.
• However, the US Supreme Court and Texas Supreme Court decisions on Texas’ unconstitutional ban have threatened the rule of law and have encouraged extremism, so there is some concern about whether this standard will hold.

TENNESSEE: On March 15, 2022, Tennessee advanced House Bill 2279 to the full committee, which was also modeled after the Texas abortion bans. Except that this one allows “family members” of a fetus to sue the pregnant patient and bans abortion at 0 weeks of pregnancy.

• House Bill 2279 is modeled almost entirely on the Texas abortion ban, despite Tennessee already having one of the strictest bans in the country. The bill bans all abortions, removing even the six weeks allowed under the Texas and Idaho laws.
• Conservative lawmakers in Tennessee also credited the success of the Texas bill in reducing abortions, completely sidestepping the fact that people are seeking care elsewhere.
• This bill also makes no exception for rape or incest, and while a rapist is prohibited from suing a patient, their family members can.

Mississippi at the US Supreme Court and its impact on federal abortion protections

On December 1, 2021, the Supreme Court began hearing oral arguments on Dobbs v. Jackson Women’s Health Organization on whether to uphold a 2018 Mississippi law banning abortion after 15 weeks of pregnancy.

• Dobbs v. Jackson Women’s Health Organization concerns a 2018 Mississippi law that prohibits almost all abortions after 15 weeks of pregnancy, although based on its wording it operates more like a 13-week ban because the 15-week countdown begins on the first day of a pregnant person’s last menstrual period. 
• The law currently violates Planned Parenthood v. Casey, a 1992 Supreme Court ruling that holds, “a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” 
• In Dobbs v. Jackson, Mississippi is directly asking the Supreme Court to overturn Roe v. Wade, the landmark 1973 decision protecting the legal right to abortion. 
• Specifically, Mississippi is asking the Court to allow it (and thereby setting a precedent for other states to follow) to ban abortions much earlier than the viability standard established by Roe v. Wade, which is 24 to 28 weeks of pregnancy.  
• This is also the first case to directly challenge Roe v. Wade in the Supreme Court since Justice Amy Coney Barrett’s appointment tipped the makeup of the Court to a conservative supermajority. 
• During oral arguments on December 1, the conservative Supreme Court justices indicated a willingness to overturn Roe, expressing dislike of the current viability standard and an interest in allowing states to determine their own policies. 
• While it is unlikely that the Supreme Court will overturn Roe v. Wade outright, it is also unlikely that federal abortion protection will remain at the current level.  
• If the Court overturns Roe v. Wade entirely, 18 trigger bans and anti-abortion policies would immediately take place across the country and four additional states with unconstitutional bans that could take effect or who have expressed intent to ban abortions to the greatest extent possible (see list below). 
• If the Court partially overturns Roe v. Wade, it could lead to a state-by-state analysis of relative burden of ‘pre-viability’ abortions. Or the Court could uphold Roe v. Wade, but potentially establish a whole new standard of how to evaluate ‘undue burden’. 

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You still have power to make change

While this can be overwhelming news, millions of grassroots advocates, champions, and legislators in states and communities across the country are working together to protect access to reproductive freedom for all people. It is in the hands of individuals like you – to vote, to speak out, to share these stories, to support grassroots organizations.

Will you join us? We have work to do.

It is in the hands of individuals like you – to vote, to speak out, to share these stories, to support grassroots organizations.

Kia Guarino, Executive Director, Pro-Choice Washington

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