May 10, 2022 - Politics & Policy
Axios Explains: Abortion

Blue states move to protect abortion access without Roe

Data: Axios research; Map: Axios Visuals

The Supreme Court might officially overturn Roe v. Wade in a matter of weeks, but blue states are rapidly moving to ensure that abortion access is guaranteed even without the precedent that guaranteed a federal right to an abortion.

Driving the news: Conservative legislatures are passing a raft of restrictive laws to ban abortion in their states in unprecedented ways, and lawmakers in more liberal states are responding in kind with bills to protect providers and patients that may become targets in red states in Roe's absence.

The big picture: There are currently at least 16 states that have codified the right to having an abortion, protecting access even if Roe disappears.

  • Connecticut and Washington state have also enacted laws that are a direct response to Texas' six-week abortion ban that encourages private citizens to sue abortion providers for offering the procedure.
  • Some of these states are moving to pass legislation that will expand abortion access and prepare for a potential influx in patients, many from out-of-state, who will be seeking care.

By the numbers: "During the 2022 state legislative session, more than 130 bills to expand access to sexual and reproductive health care have been introduced — including legislation to protect the right to abortion in state laws and expand the number of qualified abortion providers," according to data from Planned Parenthood provided to Axios.

State of play: Some states — like California and Vermont — are moving to make their protections go even further by making abortion access a constitutional right in the state, since the latter "by design" is "very hard to amend," Jessica Arons, senior policy counsel for the American Civil Liberties Union, told Axios.

  • "You can pass a bill that codifies abortion rights ... but if a future election changes the political makeup of the legislature and who's in the governor's office, then they could repeal the statute that has codified abortion rights."
  • Additionally, Arons explained that courts can "invalidate" a state law, but not a constitutional amendment because they are "bound" by that document.

Other types of laws: Other states — like Maryland, Washington state and Delaware — have moved to expand requirements on who can provide an abortion and who can prescribe medication to end a pregnancy.

  • Four states — Colorado, Massachusetts, Montana and Maine — have laws that establish a "bubble zone" that limits protests near the doors of a medical clinic.
  • States are also considering bills that would require insurance policies to provide abortion coverage.

Between the lines: In states like New Mexico, Kansas, Montana, Alaska, Florida and Minnesota, the right to an abortion is protected by a state Supreme Court precedent, according to the Center for Reproductive Rights.

  • However, lawsuits could be brought in red states where there is an anti-abortion majority of lawmakers and politicians that could challenge these decisions.
  • Approximately six in 10 U.S. adults (61%) believe abortion should be legal in "all or most cases," according to a survey from the Pew Research Center.

Axios is tracking the most recent laws protecting or expanding abortion access as they move through state legislatures and will update this story regularly.

Abortion protections that have been enacted

Connecticut: The governor of Connecticut signed into law a bill to protect abortion providers and patients from bans in other states that are enforced via private lawsuits. It will take effect in July.

  • Connecticut state Rep. Matt Blumenthal (D), one of the bill's co-authors, told Axios that the bill would be a "blueprint" for other states looking to protect abortion rights.
  • State lawmakers in California and New York have introduced similar legislation, and others in Massachusetts and Delaware have shown interest, Blumenthal said.

Colorado: Gov. Jared Polis (D) signed into law a bill, known as the Reproductive Health Equity Act, that enshrines the right to have an abortion in the state under law.

New Jersey: Gov. Phil Murphy (D) signed a bill codifying the right to an abortion into state law.

Washington state: Gov. Jay Inslee (D) signed into law a bill that is a response to Texas' six-week ban. The legislation says that a person in Washington "shall not penalize, prosecute, or otherwise take adverse action" against a pregnant person, a provider or anyone who is "aiding or assisting" someone get an abortion.

Abortion protections that have passed both chambers in the state legislature

Vermont: State lawmakers voted to advance the Right to Personal Reproductive Autonomy Amendment, which would guarantee the right to get an abortion under the state's constitution.

  • Voters will be able to vote on whether the proposal gets added to Vermont's constitution in November.

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