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Approximately 40 anti-abortion leaders expressed determination and unity in a 2.5-hour webcast before thousands of viewers just days after the nation’s highest court struck down the constitutional right to abortion last month.
During the virtual event entitled “Life Beyond Rowe,” they described the next steps for a movement that had just won its biggest victory in nearly 50 years. One by one, they talked about swapping Democratic congressional seats, empowering state law offices, avoiding a victory lap and instead doubling down on their longtime crusade to limit abortion access across the country.
“I believe that for the rest of your life you will remember exactly where you were and what you were doing when you heard the news on Friday, June 24,” David Bereit, former executive director of 40 Days for Life, told the audience. “But – this is an important but – we have to recognize that this is not the end.”
Abortion rights groups are scrambling for a post-Roe strategy
After those early moments of jubilation at the landmark’s 1973 demise Roe v. Wade decision, however, differences emerged among advocates over the best way to build on the victory they secured at the Supreme Court as Republican-led states determine how and how far they will go to limit access to abortion, according to interviews with nearly 20 anti-abortion leaders and other people involved in the movement.
“There’s always been a 50-year debate about what’s the best way to take down Roe v. Wade” said Clark Forsyth, senior counsel for Americans United for Life, an anti-abortion law firm and advocacy group. “And now there’s a big debate and everybody’s involved about what’s the best way forward – or what are the best ways forward – after Dobbs,” he said meaning Dobbs v. Jackson Women’s Health Orgthe case he overruled Rowe.
How the groups and their allies in state legislatures decide to move forward will play a key role in shaping post-Rowe landscape in the United States.
Among the areas of disagreement are whether to try to prevent women in anti-abortion states from being able to get the procedure or abortion pills across state lines, and whether to promote bans that include exceptions for rape and incest. There is also tension over whether the best way to enforce a ban is by allowing private citizens to file civil lawsuits, as in Texas.
A narrow swathe of activists takes a more extreme position in favor of criminalizing abortion patients — but such a position is at odds with the more mainstream anti-abortion movement, which argues that a woman should not be punished.
The looming battles will be fought in state legislatures as anti-abortion groups work with local leaders to pass ambitious plans to ban abortions. The major groups have their own model legislation — or plan to unveil language soon — that state lawmakers could introduce when legislative sessions resume in a race to influence what new post-Rowe America will look like this.
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Leading abortion advocates play down the divisions between the various organizations, arguing that they represent a healthy debate that can be found in any social movement.
“There are always tactical disagreements,” said Kristan Hawkins, president of Students for Life in America. “I think what’s so great about our movement, though, is that there’s this unity of what our ultimate goal is and how we’re trying to transform our culture to be one that respects life.”
But the issues they disagree on are consistent, and resolving them can be difficult.
“It was easy to rally against Roe v. Wade,” said Louisiana state Rep. Alan Seabow, a Republican who offered an amendment overturning a proposal advanced by a Louisiana House panel in May that would have allowed women who had abortions to face criminal charges. He voted for the original version of the bill in committee, but later apologized for doing so.
“I think this issue has the potential to divide the right,” he said, referring to abortion restrictions in general, “because of the question of where you draw the line. It’s not clean and neat and easy.”
Abortion rights groups are taking no comfort in the divisions in the anti-abortion movement and have vowed to fight the restrictions through the courts and the ballot box.
“These are all variations of the same thing,” said Fatima Goss Graves, head of the National Women’s Law Center. “They are abortion bans, and that’s why we’re going to fight them every step of the way.”
Civil enforcement and crossing state borders
Some national anti-abortion groups — such as the Thomas More Society — and GOP lawmakers are seeking to advance proposals that would allow private citizens to sue people who assist or provide a resident of a state that has banned abortion with a termination of pregnancy in another. state, The Washington Post previously reported. But some groups, such as the Alliance Defending Freedom, believe that could conflict with the right to interstate travel.
Abortion is now banned in these states. See where the laws have changed.
The idea for civil enforcement comes from a new method used in Texas, where the state has appointed private citizens to file lawsuits against anyone who helps a woman have an abortion. This mechanism, which allows citizens to sue – which went into effect last September — received praise from groups such as Students for Life of America, who said they “appreciate Texas ingenuity.”
One question is to what extent this legal strategy should be used to enforce abortion bans in a state, while another is how and whether it should be used to prosecute people who assist or provide abortions to women traveling from states, where the procedure is prohibited.
President Biden has already directed his cabinet secretaries to fight measures that would prevent patients from accessing abortion pills and traveling out of state. The Supreme Court has not ruled on the merits of allowing private citizens to sue, and it is not yet clear whether the Justice Department will prosecute states that use the new mechanism.
The Thomas More Society typically focuses on litigation, but decided to enter the legislative arena after the Supreme Court overruled Rowe. The conservative legal organization plans to help lawmakers come up with language using Texas’ mechanism to give private citizens the right to sue, which could include banning medication abortions and cracking down on out-of-state abortions. The effort will not criminalize the patient.
“I see civil enforcement as important to the whole abortion law because of this problem of government officials not enforcing laws they don’t like,” said Peter Breen, the organization’s vice president and senior counsel. Some abortion advocates have said they worry about scenarios in which a state’s governor or attorney general is a Democrat and refuses to enforce a ban introduced by a Republican-led legislature.
But Texas’ approach has also received skepticism from groups that say it’s too broad.
“We don’t support an indefinite law, any Tom, Dick or Harry can use the law,” said Forsyth of Americans United for Life, which is behind hundreds of anti-abortion bills introduced in state legislatures. “The civil enforcement mechanism should be limited to women harmed by abortion or family members involved or affected.”
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Shortly before the Supreme Court’s ruling, the National Right to Life Committee published a model law that its top lawyer said it had checked with other major groups. The legislation allows state and local officials — as well as the father or certain family members of a pregnant woman — to sue abortion providers.
According to James Bopp Jr., NRLC general counsel, “we think only family members” can sue.
Oklahoma passed a law using Texas’ broad law enforcement mechanism earlier this year until Idaho passed a narrower measure more akin to Bopp’s legislation.
Other groups instead take a wait-and-see approach. For example, SBA Pro-Life America—a leading anti-abortion organization—is “neutral” on the civil enforcement mechanism as long as the woman is not prosecuted.
“[We] overall, I don’t think it should be repealed, especially because in some states you have AGs who have said they will not enforce laws passed by the legislature,” Mallory Carroll, a spokeswoman for the group, wrote in an email.
Rape and incest exceptions
Among leading national groups, there is unity around the prohibition of abortion even in cases of pregnancy resulting from rape and incest. Such a position has put Republicans in an uncomfortable spotlight in recent weeks, as most current bans now include only an exception for the life of the mother.
Some organizations — such as Americans United for Life — say they are aware that some states may choose to allow abortions in cases of rape and incest in order to garner enough political support to pass new restrictions. Others, meanwhile, are more “doctrinaire” about the exemptions, said one consultant who works with an anti-abortion organization.
“Other groups have taken the practical approach that we’re never going to get consensus in America if we don’t include rape and incest protection … personally, I think that’s the right approach,” said the consultant, who spoke on condition of anonymity to speak freely .
Opponents of abortion are pushing to narrow exemptions for the “life of the mother.”
Yet several groups are instead pushing to narrow or eliminate the exemptions to save a mother’s health or life, arguing they create loopholes that can be exploited. Matt Sande, legislative director of Pro-Life Wisconsin, argues that a doctor can still intervene in life-or-death situations, but medical providers must also…
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