People for and against abortion rights are watching what happens with President Trump’s nominee to fill an empty seat on the Supreme Court.
Anti-abortion groups including March for Life and National Right to Life Committee have commended the president’s choice, Brett Kavanaugh, whose Senate confirmation hearings are set to begin in early September. Abortion-rights advocates worry that adding a perceived conservative justice like Kavanaugh will tip the court’s scales when it comes to views on abortion, opening up the possibility that a 1973 Supreme Court case protecting that right might be overturned.
Roe v. Wade determined that it’s within a person’s federal constitutional rights to liberty and privacy to end a pregnancy, until the point where a fetus could survive outside the womb. The decision rendered existing state laws that restricted or banned abortion unconstitutional. If Roe v. Wade is overturned, the power would revert back to the states to determine who can get an abortion and when.
“There's definitely excitement,” says Ingrid Duran, state legislative director for the NRLC, which released a statement praising Kavanaugh’s nomination. But, she says, it would be putting “the cart in front of the horse” to assume that Kavanaugh would singlehandedly shift the tide on abortion. Duran thinks anxiety from abortion-rights advocates is exaggerated.
“This is something that is probably part of their toolkit. 'Oh, this is so extreme,’ ‘The sky is falling,’ you know, ‘They're coming after your rights,'” she says. “I just think that this is something that they do to probably reach their base and get them motivated.”
On the other side, the Center for Reproductive Rights, a legal advocacy group that considers access to abortion a fundamental right, published a map ranking states from “low” to “high” risk of losing abortion rights if Roe v. Wade fell. In that map, the Mountain West is a colorful patchwork of risk.
“In some ways, the region could be a microcosm for what could happen nationally if Roe were to fall,” says Amy Myrick, staff attorney at the Center for Reproductive Rights.
Here’s where things stand in each of our region’s states. But first, three points of clarification:
- None of our states have so-called “trigger laws” set up to rapidly ban abortion if Roe v. Wade is overturned, so even if the Supreme Court did overturn the ruling nothing would change in the Mountain West immediately.
- At this point, the scenario of Roe v. Wade being overturned is hypothetical. For one, it’s not 100 percent clear where Kavanaugh stands on abortion. Kavanaugh has spoken approvingly of a justice that dissented in Roe, and he was involved in a recent decision to prevent an immigrant minor held in detention from getting an abortion until it was almost too late (for more on his opinions, see Slate’s breakdown here). Second, it’s not certain that Kavanaugh will be confirmed for the Supreme Court (that being said, even if Kavanaugh doesn’t get confirmed, Trump has promised to nominate justices that would overturn Roe v. Wade). Finally, even if Kavanaugh is confirmed, it’s unclear if the Supreme Court would overturn the case. According to the Legal Information Institute at Cornell Law School, the Supreme Court generally likes to stick with its past decisions.
- There are plenty of routes that states have taken to restrict access to abortion regardless of Roe v. Wade, like preventing insurance from covering it or requiring something like Utah’s 72-hour waiting period and face-to-face counseling. In addition, as the ACLU wrote, there are other ways for the Supreme Court to “effectively decimate women’s access to abortion, even without overturning Roe outright.” The New York Times outlines all the options here.
According to the Center for Reproductive Rights, Utah is the state in our region where access to abortion is the least secure. The abortion-rights group says Utah and Idaho are among 22 states where “the right to abortion is at the highest risk of loss” because if Roe v. Wade were overturned they might “ban abortion outright.” Similarly, the Guttmacher Institute, an abortion-rights research and policy organization, determined Utah to be “extremely hostile” to abortion rights based on actions the state took in 2017 to restrict access to abortion, like requiring counseling midway through a medication abortion on the potential to reverse the abortion, a claim supported by little evidence.
As the Salt Lake Tribune has reported, since 1991 the state legislature “has attempted to curb abortion through piecemeal restrictions,” including requiring women to wait 72 hours and to get face-to-face counseling developed by the state. There’s also a requirement that a fetus at 20 weeks or more receive anesthesia or painkillers before an abortion procedure. This year, state legislators tried and failed to pass a law banning abortion based on a fetus’ diagnosis with Down syndrome.
According to the Salt Lake Tribune, Utah first banned abortion in 1876, when it was still a territory. A law passed in 1943 defined what counted as criminal abortion: “Every person who provides, supplies or administers to any pregnant woman, or procures any such woman to take, any medicine, drug or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than two nor more than ten years.” It was determined to be unconstitutional after 1973 because of Roe. Then, in 1991, the state amended and reenacted that pre-Roe ban, making abortion illegal except under extenuating circumstances like rape, incest or if “abortion is necessary to avert the death of the woman.” A federal court blocked it from being enforced.
Anti-abortion rights state Sen. Curt Bramble told the Salt Lake Tribune that if Roe were overturned, he expects Utah to revive its 1991 law.
If Roe is overturned, “the state would have to go into court and ask the court to change that decision, which could be a little bit of a hurdle to immediate enforcement,” Myrick says.
Myrick says other factors that make Utah “high risk” is that the state legislature is anti-abortion rights. “Both chambers of the legislature plus the governor are all opposed to abortion,” she says.
Finally, Utah has established that fetuses “have inherent and inalienable rights that are entitled to protection by the state of Utah.”
Montana stands out in the Mountain West and nationally; It’s one of just nine states that has determined that its state constitution protects a woman’s right to get an abortion. That makes it the state in our region where access to abortion is most secure, according to the Center for Reproductive Rights.
Article II, Section 10 of the Montana Constitution says, “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”
About 20 years ago, the Montana Supreme Court held that the right to privacy protects the right to abortion up to the point where a fetus could survive outside the womb
Here’s what the opinion says:
“Article II, Section 10 of the Montana Constitution broadly guarantees each individual the right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen healthcare provider free from government interference. More narrowly, we conclude that Article II, Section 10, protects a woman's right of procreative autonomy …
“Moreover, the State has no more compelling interest or constitutional justification for interfering with the exercise of this right if the woman chooses to terminate her pre-viability pregnancy than it would if she chose to carry the fetus to term. Recognition of this point is important - especially for those who reject abortion. For if the State has the power to infringe the right of procreative autonomy in favor of birth, then, necessarily, it also has the power to require abortion under some circumstances. If one accepts the former, then imposition of the latter is no more remote than a change in prevailing political ideology …
“Unless fundamental constitutional rights -- procreative autonomy being the present example -- are grounded in something more substantial than the prevailing political winds, Huxley's Brave New World or Orwell's 1984 will always be as close as the next election.”
Myrick says state constitutional protections like Montana’s are the strongest measures securing access to abortion.
“Those protections would remain in place even without Roe,” says Myrick. “The only way to get rid of them is to amend the state constitution or for a [state] supreme court to overrule itself, and both of those things are pretty high barriers.”
The Guttmacher Institute, an abortion-rights research and policy organization, determined Montana to be one of 12 states that was “supportive” of abortion rights in 2017 after the governor vetoed a ban on abortion at 20 weeks and a restriction on post-viability abortions.
In addition, according to the Guttmacher Institute, the state “does not have any of the major types of abortion restrictions—such as waiting periods, mandated parental involvement or limitations on publicly funded abortions—often found in other states.” Indeed, a series of attempts in the 1990s to restrict abortion access were struck down because of the state’s constitution. According to the Kaiser Family Foundation, it’s also the only state in our region where Medicaid covers elective abortions, exceeding the federal standard that public funds cover abortions only in case of incest, rape or life endangerment.
That’s not to say that it’s easy to get an abortion in Montana. Access is another issue. There are only a handful of clinics in the state. An ongoing lawsuit is challenging a Montana law that prevents advanced practice registered nurses from providing abortions.
Duran with the NRLC says she hasn’t seen much anti-abortion action in Montana lately. “They had a fetal pain bill and a webcam abortion (telemedicine consultation for medication abortion) ban and also a bill (saying that) insurance companies that offer abortion coverage must also allow plans without abortion coverage," she says. "And I believe all three bills were vetoed by the governor in 2015.”
Duran says the fact that Montana is in the Ninth Circuit of the U.S. Court of Appeals makes it a tough state when it comes to upholding anti-abortion laws.
“They're not in a pro-life-friendly circuit,” she says. “For instance, in 2009 when we developed the Pain-Capable Unborn Child Protection Act that protects unborn children from abortion when they're capable of feeling pain, we wouldn't necessarily try it out in Montana or Idaho first because I would say that the Ninth Circuit is where it would go to die.” Fetal pain is a controversial issue but according to the American College of Obstetricians and Gynecologists the science is clear: “The fetus does not even have the physiological capacity to perceive pain until at least 24 weeks of gestation.”
Like Utah, Idaho also received a “high risk” mark from the Center for Reproductive Rights. The Guttmacher Institute says the state has “enough abortion restrictions to be [considered] hostile to abortion rights,” though the state did repeal a ban on using telemedicine for medication abortions in response to a court order.
Unlike Utah, Idaho doesn’t have a pre-Roe abortion ban, but Myrick says the state has clearly signaled its intention to ban abortion.
As the state established in 2001, “It is hereby declared to be the public policy of this state that all state statutes, rules and constitutional provisions shall be interpreted to prefer, by all legal means, live childbirth over abortion.”
And in 2011, the state passed a law banning abortions after 20 weeks except in extreme cases such as to avert the death of a woman who has an underlying medical condition. A federal judge subsequently ruled the Idaho law unconstitutional under Roe. Roe prevents states from banning abortion before a fetus is viable, which is a moving target as medical technology improves. Right now, the general medical consensus is that fetuses are viable at 23 weeks of gestation.
“If Roe fell, then they would be able to enforce that (2011 law), which would seriously impact access,” says Myrick. “Twenty-week bans really affect people who have trouble raising the funds for abortion and who have trouble -- logistical burdens -- reaching a provider.”
The state currently requires women considering abortions to get counseling and to wait 24 hours. According to the NRLC, it is the only state in our region that passed a law protecting fetuses after 20 weeks of gestation from abortion if they are capable of feeling pain. Current science says fetuses are incapable of feeling pain until at least 24 weeks of gestation.
Duran with NRLC says the state passed two anti-abortion laws this past legislative session. “One amended (the state’s) informed consent, woman's-right-to-know law with information on the possibility of abortion pill reversal. This is essentially a law that just gives information to abortion-minded women,” she says. It requires that a woman be told that medical abortions can be reversed, a claim supported by little evidence.
Another law requires that abortion providers gather personal information about women who receive the procedure, and report information about complications following an abortion -- including unrelated complications like allergic reactions to anesthesia -- to the state health department. As the Associated Press reported, critics say such laws are “intended to stigmatize women seeking medical care.”
“In Wyoming the right to abortion is at risk, but it's not in that very high-risk category like Utah and Idaho,” says Amy Myrick with the Center for Reproductive Rights.
She says because Wyoming doesn’t have a pre-Roe ban on the books, access to abortion in Wyoming depends where state legislators stand on the issue. Right now, she says, "it has a fully anti-choice legislature.”
Access to abortion in that state is already extremely limited. There are only two places in the almost 100,000-square-mile state where women can go for abortion services.
“In Wyoming -- I mean this is very surprising and very good -- but in 2017 they passed an ultrasound law that would give pregnant women an opportunity to view the ultrasound of their unborn child prior to an abortion,” says Duran with NRLC.
The law requires that providers give a woman information on how to get an ultrasound before obtaining an abortion. According to the Guttmacher Institute, ultrasounds are not medically necessary in a first-trimester abortion and such requirements are a “veiled attempt to personify the fetus and dissuade the woman from getting an abortion.”
Colorado and Wyoming are similar in that abortion access will depend on who populates the state legislature. “Colorado, at least for now, has a legislature that supports abortion,” says Myrick. “But that, of course, can change.”
Colorado was the first state in the nation to loosen tight restrictions on abortion. It was also the site of the most recent murder of abortion providers, which took place in 2015 when a shooter killed three people and injured nine at a Planned Parenthood in Colorado Springs.
According to data collected by the Guttmacher Institute, Colorado has the most clinics by far in our region and provides the most abortions in the Mountain West by a long shot, though the rate of abortions per 1,000 women is still lower than the U.S. national rate.
For now, the Center for Reproductive Rights considers Colorado at a “low risk” of revoking access to abortion. But unlike Montana, the other low-risk state in our region, Colorado has not established that its state constitution protects a woman’s right to get an abortion. In that sense, Myrick says, “Although the right to abortion appears secure there -- for now -- it's not equivalent to Montana.”
Duran with NRLC says just because a state tends to support abortion access doesn’t mean they’ll give up trying to pass anti-abortion laws.
“It’s definitely a lot harder, but I never think that it's completely impossible,” she says, pointing to New Hampshire as an example. In 2003 the state passed a law requiring girls under age 18 to notify a parent before getting an abortion. She says the law had come up every year since at least 1995.
“Everyone was just like, ‘It's never going to pass, it's never going to pass,’ but we never gave up and we did it and it passed,” she says.
Duran’s organization doesn’t rank states by their overall stance on abortion, she says, “because I think all it takes is an election cycle to change that.”
Across the country, abortions are declining, as are the number of clinics that provide them.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, Yellowstone Public Radio in Montana, KUER in Salt Lake City and KRCC and KUNC in Colorado.