After the Midterms, states like Pennsylvania will ban abortion protections

  • By Amy Forliti and Geoff Mulvihill/ The Associated Press

FILE – The Supreme Court is seen on the first day of the new term as activists demonstrate in Washington Square on Monday, October 4, 2021. Arguments are scheduled for December, which will see Roe v Wade and Planned Parenthood v Casey. the most important Supreme Court decisions in the last half century guaranteeing a woman’s nationwide right to an abortion. (AP Photo/J. Scott Applewhite, file)

Democrats hope to use their newfound political control in some states to guarantee women’s access to abortion, while some GOP strongholds may ease efforts to deepen restrictions after worse-than-expected midterm election results.

Even after their gains this month, Democrats lack the power to enshrine abortion rights in federal law. That puts the abortion debate squarely on states to navigate and revise the patchwork of laws that have been in effect since the Supreme Court ruled Roe v. Wade fell.

There will be another patchwork: In Minnesota, the Democrats plan to include abortion rights in state law. In GOP stronghold Florida, leaders are talking about more restrictions but haven’t agreed on a plan. In Pennsylvania, Democrats’ support means they can likely keep Republicans from adding anti-abortion language to the state constitution, and legislative deadlock remains in divided states like Wisconsin.

“The real uncertainty is how far states will go with abortion bans,” said Mary Ziegler, a professor at the University of California, Davis, School of Law and an expert on reproductive policy. After halftime, some states might think twice before proceeding with strict bans.

But, she said, some Conservative lawmakers might say, “I see no problem here. We’re fine. We won our elections and our voters want abortion bans.”

Roe’s reversal, which enshrined abortion rights statewide, was largely unpopular with voters. According to VoteCast, a survey of more than 94,000 voters conducted by NORC at the University of Chicago for The Associated Press, about 6 in 10 say they are upset or dissatisfied with the decision, while about 4 in 10 were pleased . Among Democratic voters, about 6 in 10 say the ruling has enraged them.

Jeremy Long / WITF

More than 30 people gathered outside the State Capitol on May 3, 2022 to protest the leaked draft U.S. Supreme Court ruling ruling Roe v. Wade would undo.

“Whatever people’s personal feelings about abortion, they’re very clear that they don’t want government and politicians to mess around with their health care,” said Megan Peterson, executive director of Gender Justice, a Minnesota nonprofit who advocate for equality.

Minnesota has no laws guaranteeing access to abortion, but abortion is protected by a 1995 Supreme Court ruling that cites a woman’s right to privacy. After an election that will give Democrats responsibility for both houses of the legislature and the governor’s office for the first time in eight years, House Speaker Melissa Hortman said it will be a priority when the January session begins to codify the right to abortion into state law.

On the Michigan battlefield, voters overwhelmingly approved an amendment that enshrines abortion rights in the state constitution and affirms a person’s right to make pregnancy-related decisions about abortion and other reproductive services without interference.

Still, getting a 1931 law criminalizing abortion off the books is a priority, said Senate Majority Leader Winnie Brinks. Democrats took control of the House and Senate this month. When the new legislature is sworn in, it will be the first time since 1983 that the party will have full control of state government.

Brinks said Democrats eventually want to move forward with other legislation focused on reproductive rights.

“People have been very clear that they value their reproductive freedoms at a very high level and we want to make sure we affirm that,” she said.

Elsewhere, a legislative standoff could be looming.

In Wisconsin, Democratic Gov. Tony Evers won re-election while Republicans increased their majorities in the state legislature, but failed to achieve their goal of achieving a supermajority capable of overriding vetoes.

Republican Convention Speaker Robin Vos reiterated his call for passing legislation providing exceptions to rape and incest and other amendments to the 1849 Act to ensure the state ban stands up to court challenge. But Evers, who expressed confidence in a court challenge, said he would veto any bill upholding the ban.

“I don’t see any way to solve this through legislation,” Evers said.

Voters in Pennsylvania gave up about a dozen seats to Democrats in the state house, which could block Republican efforts to add anti-abortion language to the state’s constitution.

Nebraska Republicans want to ban abortion, but the GOP appears to have failed to secure the 33 seats it needs in the officially bipartisan, one-house state legislature to overcome filibusters. That could make it harder for them to outlaw abortion, even though they control the legislature and hold all the major national offices.

Other GOP strongholds see roadblocks for bans.

In Kansas, the legislature maintained its strong anti-abortion majority, but anti-abortion opponents are being curtailed by a 2019 state Supreme Court decision declaring access to abortion a “fundamental” right of the state constitution.

In August, voters firmly rejected a proposed constitutional amendment that would reverse that decision. Anti-abortion advocates are looking at other proposals instead.

Rep. Dan Hawkins, a Wichita Republican who is expected to become speaker of the House of Representatives in January, said lawmakers could pursue legislation requiring health care providers to take all reasonable steps to save the life of a live-born child, too after an attempted abortion.

“You have to do something that you think has a chance of passing the muster,” Hawkins said.

Nicky Sundt from Washington holds a sign with an image of Medusa that reads: "Remember, in November, vote!," outside the Supreme Court, June 29, 2022, in Washington.

Jacquelyn Martin / AP photo

Nicky Sundt of Washington holds a sign with a Medusa image that reads “Remember in November, Vote!” in front of the Supreme Court in Washington June 29, 2022.

Voters in Montana, where Republicans have an absolute majority in the legislature, rejected a similar voting measure on Nov. 8. Five days later, a lawmaker there called for a bill to be drafted to “declare that a child born alive is a person.” It has yet to be finalized, but another bill, already drafted for next year, calls for a ban on abortions at all stages of pregnancy.

Kentucky voters rejected a Republican-backed ballot measure aimed at denying all constitutional protections for abortion — highlighting an apparent gap between voter sentiment and expectations of the GOP-dominated legislature, which imposed a near-total abortion ban.

“The people of Kentucky have spoken, and their answer is no — no to extremist politicians who ban abortion and make private medical decisions on their behalf,” said Amber Duke, interim executive director of the ACLU of Kentucky.

A Georgia judge this week overturned an abortion ban from about six weeks of gestation, ruling that it violated the US Constitution and US Supreme Court precedent when it went into effect in 2019 because Roe was still in effect. But the judge left the door open for the legislature to consider the ban.

In Florida, which continued to cement its GOP control, the issue was also unclear. Florida passed a 15-week abortion ban during the 2022 legislature with no exceptions for rape or incest.

Republican Gov. Ron DeSantis won by a landslide victory, and the House and Senate transitioned from firmly Republican to GOP supermajorities in each chamber. The governor and lawmakers have all said they support new abortion restrictions, but no specific language has been suggested.

Christine Matthews, a pollster who has worked for Republicans, said even among conservative lawmakers there could be further debate over how far the restrictions should go, as was the case this year in Indiana and West Virginia, where legislation was passed , which ban abortion during pregnancy, but with exceptions for rape and incest.

“For the first time, some of these particularly male legislators have come to grips with the fact that this is difficult and not all going in one direction,” Matthews said. “People who advocate it as a relationship between a woman and a doctor say, ‘Yeah, no kidding.'”


Mulvihill reported from Cherry Hill, New Jersey. Also contributing were Associated Press writers Joey Cappelletti of Lansing, Michigan; Amy Beth Hanson of Helena, Montana; Mark Scolforo in Harrisburg, Pennsylvania; John Hanna in Topeka, Kansas; Scott Bauer of Madison, Wisconsin; Josh Funk in Omaha, Nebraska and Brendan Farrington in Tallahassee, Florida.