Abortion battle lines

STUDENTS FOR LIFE PRESIDENT Kristan Hawkins sat typing in the bedroom of her family camper in Florida on Jan. 20, 2021. She was writing a speech about the state of the pro-life movement to give at an upcoming event, but sounds from the other room distracted her: Her husband and oldest child were watching President Joe Biden’s inauguration speech in the living area, and she could hear everything.

“President Biden … spoke eloquently about uniting America and how we need to end the uncivil war and that he was going to be a president for all Americans,” she said when I spoke with her the next day. But she had seen the administration’s pro-abortion agenda on the campaign trail. “I don’t have any hope that those words will actually be put into action.”

The first few days of Biden’s presidency confirmed pro-life fears that the incoming administration would not be friendly to unborn Americans. The Presidential Inaugural Committee listed Planned Parenthood among its contributors. Two days later, on the anniversary of the 1973 Roe v. Wade decision that legalized abortion, President Joe Biden released a statement pledging to codify a woman’s “right” to abortion into law.

Less than a week later, Biden signed a presidential memorandum revoking President Donald Trump’s Mexico City Policy that prevented federal funds from going to international abortion providers. That same memorandum also removed the United States from the Geneva Consensus, an international pro-life declaration, and initiated the process of reversing Trump’s Title X rule that kept abortion providers from getting family planning funding.

But a year that brought little recourse for pro-life progress on the federal level also became a hallmark year for pro-life victories at other levels of government. Pro-life groups made headway in state legislatures and celebrated as Trump’s long-lasting victory of pro-life judges and Supreme Court justices brought victories in the courts. At the same time, the events of the year increased tensions on the issue: Abortion advocates are worried and pro-lifers hopeful as they mark Roe’s 49th anniversary, wondering if the decision will see its 50th.

The pro-abortion Guttmacher Institute published a report in April calling the 2021 legislative session the most “damaging” to the pro-abortion cause in decades. By that time, states had introduced 536 pro-life bills and 61 had become law. By the same time in 2011, the previous record-holding year, states had only enacted 42 pro-life laws.

Arkansas in March passed one of the strongest protections for the unborn in any state. That law allows abortions if a pregnancy threatens a woman’s life but does not allow abortions in cases of rape or incest. In signing the bill, Gov. Asa Hutchinson acknowledged that it defies Supreme Court precedent, “but it is the intent of the legislation to set the stage for the Supreme Court overturning current case law,” he said.

OTHER LEGISLATION that pro-life groups worked for in 2021 would have more immediate and practical effects.

Leslie Wolbert stayed up late on a Thursday night in January to finish recording her video testimony for the Montana House of Representatives. The judiciary committee was considering a bill to solidify safety measures for the abortion pill, and a pro-life leader asked Wolbert to testify about her own experience taking the drug. In November 2005, Planned Parenthood staff that gave her the abortion pills told her the process would be like a heavy period. But the pain was so severe that she became delirious and experienced both diarrhea and vomiting.

The homeschool mom of two recorded the video on her husband’s phone. She spent hours in her bedroom working on it. She cried so much while recounting her traumatizing experience that, at 10 or 11 p.m., she redid her makeup and hair before recording the final takes.

“I plead with you to not allow this horrifying procedure to expand in your state,” Wolbert said at the end of the three-minute video. “Please pass strong safeguards on the abortion pill. Women believe that someone is looking out for them, but if the FDA removes its safeguards, then we will need you to ensure that the women of your state are protected.”

The bill passed the Montana House later that month and the Senate a month after that. Gov. Greg Gianforte signed it at the end of April. Other states took similar measures in 2021, encouraged by pro-life groups that could tell the abortion pill was becoming a fail-safe for the abortion industry as pro-life laws faced a potential increase.

It was good timing, too: In April, Biden’s Food and Drug Administration announced that it would not enforce the requirement for abortion providers to dispense the abortion pill in person during the COVID-19 pandemic, opening the floodgates for pro-abortion websites to continue sending abortive drugs to women through the mail. In December 2021, the FDA scrapped that in-person requirement for good.

Pro-abortion activists march outside the Texas State Capitol to protest the new state law that went into effect Sept. 1. Sergio Flores For The Washington Post via Getty Images

TEXAS PASSED IN MAY the pro-life law that made the biggest waves. It protects unborn babies from abortions once they have a detectable heartbeat. Similar laws, like one lawmakers in South Carolina passed in February, have not gone into effect due to pre-enforcement lawsuits. But the Texas version went into effect as planned on Sept. 1, thanks to a controversial enforcement mechanism that makes the law difficult to challenge in court. Instead of leaving enforcement to the state, the law tasks private citizens with suing abortionists and others who help women obtain an abortion after the baby has a detectable heartbeat.

For months, many pro-lifers expected courts to block the law as they had with other similar legislation. But a week before it took effect, several dozen staff members from pregnancy centers around Texas gathered for a taco dinner outside of the Sanctuary of Hope maternity home near San Antonio. “To taco-bout Texas!” said Jana Pinson, director of the Pregnancy Center of the Coastal Bend. They spent the evening learning about the law and how it would affect Texas women. “Almost all of the directors leaving were like, ‘I really didn’t think this was going to happen. This is really going to happen, isn’t it?’” Pinson said.

Starting Sept. 1, some Texas abortion facilities stopped performing even pre-heartbeat abortions for a time. Many of the clients those centers turned away showed up at the state’s pregnancy centers. One of Pinson’s pregnancy centers saw a nearly 100 percent increase in services the first week of the law as compared to the same time the year before. Two centers in Houston normally perform 100 ultrasounds in two weeks, but just between Aug. 30 and Sept. 4, they performed a total of 96 ultrasounds. A report in October estimated that the law had cut the number of Texas abortions in half. Pro-life nurses who performed ultrasounds reported seeing women respond with relief at seeing a heartbeat since it meant friends and family could no longer pressure them to abort.

“It’s amazing that it actually has happened,” said one pregnancy center director, who told me in September that she wakes up crying because she’s so happy about the new law. “For this season, the fact that abortion is illegal after a heartbeat is detected is something I don’t know that I ever thought I’d see in my lifetime, and it’s just—it’s beautiful.”

But not all pro-lifers expressed such unequivocal praise for the law.

When pro-life attorney Paul Linton, special counsel for Texas Alliance for Life, found out that the heartbeat bill’s main architect, Jonathan Mitchell, was encouraging other state legislators to pass similar legislation, he warned his contacts in those states not to pursue it. He posited that the law could antagonize the Supreme Court in the meantime by dishonoring their past precedent. Other pro-lifers expressed concerns that the private enforcement mechanism could encourage liberal states to restrict rights that matter to pro-lifers, such as praying outside of abortion facilities.

John Seago, legislative director of Texas Right to Life, one of the main groups supporting the law, said the point isn’t to ignore Roe’s constitutional considerations but to elicit debate about its constitutional validity. “The entire pro-life movement believes that … [Roe] is erroneous precedent, and we have to find ways to display that in the court,” Seago said.

But pro-abortion groups have used the law to display something else. Since September, media outlets have highlighted the great lengths women had to take to access out-of-state abortions. Pro-abortion groups used the plight of Texas women as an opportunity to elicit donations to abortion funds nationwide.

Compiled using information from Guttmacher Institute and Americans United for Life

CONCERNS ABOUT a post-Roe America have certainly touched the public: Texas became a rallying cry for pro-abortion activists at the 2021 Women’s March held in states across the country. Angry activists sometimes reacted violently to pro-lifers gathered to counterprotest. It touched the pro-abortion Biden administration too: Biden’s Department of Justice sued Texas on the grounds that its new law’s restriction of early abortions was unconstitutional and called on the Supreme Court to block it.

The Supreme Court seems less concerned. Although the justices rushed two cases related to the Texas law to oral arguments on Nov. 1, they weren’t in such a hurry to issue an opinion: Activists on both sides expected to see rulings before the end of the month. The decisions didn’t come until Dec. 10. The highly technical ruling, authored by Trump-appointed Justice Neil Gorsuch, allowed one of the lawsuits against it to continue in a limited capacity, implying that the justices could be somewhat skeptical of the law’s private enforcement mechanism. But it did not block the law, and it reserved the question of abortion’s constitutionality for another case.

The Supreme Court shocked pro-life and pro-abortion activists alike when it announced in May that it would take up Dobbs v. Jackson Women’s Health Organization, the case of a 2018 Mississippi law protecting babies from abortion after 15 weeks. The court had punted it for almost a year, and pro-life groups had set their sights on other cases that could challenge Roe. But at last the justices agreed to consider a question from the state of Mississippi: “Whether all previability prohibitions on elective abortions are unconstitutional.” Mississippi Attorney General Lynn Fitch’s July brief called on the Supreme Court to use this question to overturn past court precedent on abortion and give back to states the power to regulate the procedure before viability.

Some pro-life activists saw the now more conservative court’s agreement to hear the case as a signal of potential willingness to scrap the court’s messy, decades-old abortion precedent. Before oral arguments, Mississippi pro-life lobbyist Jameson Taylor was optimistic that the court would allow the bill he supported through the 2018 Mississippi legislative session to stand, opening the door for other states to regulate previability abortions. If the court intended to let Roe stand, he said, the justices wouldn’t have agreed to take up the Mississippi case in the first place.

Pro-life briefs in the case argued that changes since the court last considered overturning Roe in the 1992 Planned Parenthood v. Casey case mean that women no longer rely on abortion as they once did. According to Heartbeat International’s amicus brief in the Dobbs case, only three pregnancy centers offered medical services in 1992. Today, more than 2,000 do. “The pregnancy help movement is one piece of why the court can revisit Roe and revisit Casey and rest assured that women are not going to be … cast into darkness because they find themselves unexpectedly pregnant,” said Danielle White, general counsel for Heartbeat International and author of the brief.

During oral arguments, the Biden administration made its position on the abortion issue clear once again through newly appointed U.S. Solicitor General Elizabeth Prelogar. “The court has never revoked a right that’s so fundamental to so many Americans and so central to their ability to participate fully and equally in society,” she claimed, warning that reversing past rulings would bring “severe and swift” consequences.

But some justices seen as key moderate votes in this case seemed willing to play with the idea of pushing Roe and Casey aside. Justice Brett Kavanaugh, a Catholic and Trump-appointee whom some pro-lifers see as a wild card on the abortion issue, listed numerous cases that the court had overturned with later rulings—including significant race-related cases. “If we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and not stick with those precedents in the same way that all those other cases didn’t?” he asked.

Chief Justice John Roberts, another wild card on abortion, seemed unsure that viability was even a necessary standard. He suggested that a 15-week limit still gives women plenty of time to choose and even aligns with the standards in European countries.

A WEEK AFTER the Dobbs oral arguments, a group of California legislators and abortion providers released plans to make the state a destination for abortion seekers. In the proposal, the authors acknowledged the country is approaching a possible post–Roe v. Wade future in which some states could prohibit abortion. Some of the 45 recommended measures include investing in abortion funds, enacting legal protections for abortion businesses, and combating the work of pro-life pregnancy centers.

President Biden was also concerned by the Supreme Court’s decision in the Texas case, and he promised to fight back by helping Congress pass the Women’s Health Protection Act (WHPA). That legislation would not only codify Roe v. Wade into law but also restrict states from passing specific regulations to protect unborn babies and their mothers.

For now, that bill (first introduced in 2013) faces an uphill battle in an evenly split Senate. But some pro-lifers in 2021 worried that the bill could make it farther this time around than it had in years past. When senators reintroduced the WHPA in June, every Democrat except for Joe Manchin of West Virginia and Bob Casey of Pennsylvania co-sponsored it.

National Right to Life Committee’s Jennifer Popik said then that the Dobbs v. Jackson Women’s Health Organization case could bring more attention to this bill than in years past, when it never even made it to a vote. “With so many members committing public support to the measure, we are concerned that the WHPA will garner much more attention this Congress, particularly once the Supreme Court issues a ruling,” she said.