State Legislatures To Be ‘Main Battleground’ For Abortion Rights If Roe Is Overturned

The potential demise of Roe v. Wade will heighten the stakes of state legislative races this fall as the GOP fights abortion rights and Democrats defend them.

Two years ago, Virginia Gov. Ralph Northam (D) signed a series of bills to expand abortion access and eliminate decades-old restrictions on the practice that had made the commonwealth a difficult place to obtain such a procedure.

The new laws were possible because Democrats had successfully flipped both chambers of the Virginia state legislature in 2019 and regained majority control of the bodies for the first time in more than two decades.

Two years later, Virginia may be on the brink of a dramatic reversal. Last fall, Republicans won back the governor’s mansion, retook control of the state House of Delegates, and trimmed Democrats’ majority in the state Senate to a single seat.

Now, with the Supreme Court apparently on the brink of a decision that would fully overturn Roe v. Wade, according to a leaked draft obtained by Politico on Monday night, the newly empowered Virginia GOP may be ready to join the bevy of states ready to severely limit or perhaps totally ban the practice.

While midterm elections usually turn on who controls Congress, the looming Supreme Court decision might mean that the most meaningful races will be often-overlooked campaigns for state legislative districts.

For all the attention on Washington, it is unlikely that Senate Democrats will manage to pass the Women’s Health Protection Act, a bill that would codify Roe and legal abortion into federal law, any time soon. It will be in state capitals like Richmond, Lansing and Phoenix that the future of abortion rights in America is most immediately and directly decided.

Already, California is moving to codify abortion rights, as New Jersey did earlier this year. Republican-controlled legislatures, meanwhile, are racing in the opposite direction.

“With the Supreme Court on the precipice of overturning Roe v. Wade, state legislatures will become the main battleground for protecting abortion rights in America,” Vicky Hausman, the co-founder of Forward Majority, which has sought to flip GOP-controlled legislatures in recent cycles, said in a statement Tuesday. “We can no longer count on the federal government or the courts. If you care about reproductive rights, you need to care about state legislative power.”

The law Texas Republicans passed to effectively outlaw abortion set off protests in other states amid fears they would follow its blueprint. The Supreme Court's apparently likely decision to overturn Roe v. Wade will only intensify the focus on state legislatures as the GOP seeks to further restrict abortion rights.
The law Texas Republicans passed to effectively outlaw abortion set off protests in other states amid fears they would follow its blueprint. The Supreme Court's apparently likely decision to overturn Roe v. Wade will only intensify the focus on state legislatures as the GOP seeks to further restrict abortion rights.
Megan Varner via Getty Images

Outside the courts, state legislatures have served as the focal point of the anti-abortion movement, as Republicans have used their majorities to push ever more aggressive restrictions in the states they control. Heavily gerrymandered state legislative districts that reduce two-party competitiveness have helped fuel a spiral in which the easiest way for a Republican candidate or lawmaker to curry favor with the party’s base is to put forth increasingly radical ideas on abortion, democracy or any other right-wing pet cause.

Republican legislatures have already made 2022 one of the worst years on record for abortion rights, passing a litany of restrictive laws that have followed the blueprint of Texas’ S.B. 8, which effectively outlawed abortion last year. Some of those new laws don’t include exceptions for rape or incest.

Twenty-two states currently have laws or constitutional provisions that would likely make abortion illegal immediately if the Supreme Court overturns Roe, and four more with GOP-controlled legislatures — in Florida, Indiana, Montana and Nebraska — seem likely to join them after the ruling.

Democrats, on the other hand, have raced to expand abortion rights ahead of the Supreme Court ruling. Colorado Democrats approved a law to explicitly protect abortion rights in March, and Vermont Democrats are pushing a measure that would make Vermont the first state to enshrine the right to an abortion in its constitution if California doesn’t do so first.

Overall, Democratic legislatures have protected the right to abortion in 16 states and Washington D.C., according to the Democratic Legislative Campaign Committee, the party’s state legislative arm, all while Democrats have never managed to codify Roe into federal law.

“This should be a tough lesson for Democrats – our policymaking power in Washington is limited and the fight to protect abortion rights will now lie in state legislatures,” DLCC President Jessica Post said in a statement Monday night. “State legislatures are Democrats’ best chance to protect abortion rights across the country when the court strikes down Roe.”

Whether Virginia might pursue an all-out ban or other restrictions remains an open question, one GOP Gov. Glenn Youngkin largely dodged in an interview with Virginia Political Newsletter’s Brandon Jarvis on Tuesday. Instead, he reiterated that he is pro-life, expressed dismay about the leak, and said he would wait until an official ruling in the case to see what he and the legislature might want to do on abortion issues.

“We have to wait until the Supreme Court ruling is final before we in fact can really define where we’re going to go,” Youngkin said. “If this is actually the final ruling, this will be a decision the states should have.”

Democrats still control the Virginia state Senate by a single vote, but one member of the Democratic caucus opposes abortion. That has generated fears since last November’s election that the Virginia GOP may be able to successfully implement new abortion restrictions if Republicans can craft a proposal that the lone anti-abortion Democrat will support.

“While we are all doing all that we can at this moment in time, I think that it should feel real that this is actually something that could transpire, and Virginia should be on alert and on notice,” Virginia state Delegate Briana Sewell (D) told HuffPost on Tuesday.

Virginia Gov. Glenn Youngkin (R) wouldn't say whether he plans to pursue aggressive abortion restrictions in the wake of a leaked opinion that suggests the Supreme Court will soon overturn Roe v. Wade.
Virginia Gov. Glenn Youngkin (R) wouldn't say whether he plans to pursue aggressive abortion restrictions in the wake of a leaked opinion that suggests the Supreme Court will soon overturn Roe v. Wade.
The Washington Post via Getty Images

Battles over the future of abortion rights also seem likely to dominate legislative campaigns and statewide elections in major swing states.

Arizona is among the states in which existing laws will likely make abortion illegal immediately. Michigan, meanwhile, has an existing law on the books but may need to pass another to fully outlaw abortion, especially amid lawsuits from Democratic Gov. Gretchen Whitmer and reproductive rights groups arguing that newer laws and constitutional provisions preempt the old statute.

Both states will serve as major battlegrounds in November. Whitmer and Michigan Attorney General Dana Nessel, who has pledged not to enforce anti-abortion laws, are in the midst of tough reelection fights against Republicans who oppose reproductive rights. And President Joe Biden’s 2020 victory in Arizona has bolstered Democratic hopes that Secretary of State Katie Hobbs or another of the party’s candidates can win the governor’s mansion for the first time since 2006.

Republicans hold tenuous control of the Michigan and Arizona state legislatures. Their 16-14 majority in the Arizona Senate and 31-29 advantage in the state House mean Democrats would need to flip a single seat in each to break the GOP majority. Republicans hold a 58-52 advantage in the Michigan state House and a 20-16 majority in the Senate, where there are two vacancies.

Democrats are also seeking to win the state House majority in New Hampshire, which does not currently have a law that would ban abortion if the Supreme Court overturns Roe. Neither does Pennsylvania, where Democrats have their sights set on a longer-shot effort to flip the state legislature and at least hope to prevent the GOP from winning the governorship and assuming total control of the state.

Minnesota Gov. Tim Walz, a Democrat, is up for reelection this year and vowed Monday night that “there will never be an abortion ban on my watch.” Democrats also hope they can stave off Republican gains in the state House, where they hold the majority, and potentially pick up seats in the Senate, where the GOP narrowly holds control, to ensure no such ban materializes in the near future.

In North Carolina, meanwhile, the party wants to avoid allowing the GOP to reassemble a state Senate supermajority that would allow Republicans to override Gov. Roy Cooper’s (D) promised vetoes of anti-abortion legislation.

State legislative success has eluded Democrats in recent cycles: They didn’t win a single new legislative body in 2020 despite pouring record resources into such campaigns and have already lost control of two of the chambers they flipped during the Trump presidency. But party leaders believe that backlash to abortion bans — and an all-out overturning of Roe — could hurt Republicans, even in a midterm cycle that should naturally favor the out-party.

Last September, Democrat Catherine Rombeau flipped a New Hampshire state House seat immediately after the Supreme Court declined to block the new Texas anti-abortion law, prevailing in a race in which abortion rights were “the number one issue,” Post tweeted at the time.

Groups like Forward Majority and the States Project, another progressive organization that focuses on state legislatures, had already begun urging voters to focus on flipping legislative chambers to combat Republican efforts to subvert elections and basic democracy. The Supreme Court’s apparent move to overturn Roe and dismantle abortion rights has only further heightened the stakes.

“The draft decision is clear: abortion access will be decided state-by-state, solely along the lines of state legislative control,” said Simone Leiro, a spokesperson for the States Project. “Make no mistake, gutting abortion access and dismantling our democracy are both about ending individual choice. Do you really think that bounties for turning in your neighbor, being punished for what you do in another state, and going to prison for doing your job will end at the womb?”

Amanda Terkel contributed reporting.

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