Post-Roe strategy

States push 15-week abortion bans as the right argues over a post-Roe strategy

Legislators say they’re taking what they see as a politically and legally safer approach, even if it means the vast majority of abortions in their states could still take place.

By ALICE MIRANDA OLLSTEIN and MEGAN MESSERLY

Several GOP-controlled states could ban abortion after 15 weeks of pregnancy as soon as this week, passing bills modeled on a Mississippi law that the Supreme Court could soon deem constitutional.

But those same states aren’t taking restrictions as far as Texas, which bans all abortions after six weeks.

The approach has opened fissures in the conservative movement, with some urging more caution while others demand states swiftly follow Texas or go even further.

Legislators in Arizona, Florida, West Virginia and several other states advancing 15-week bans say they’re taking what they see as a politically and legally safer approach, even if it means the vast majority of abortions in their states could still take place.

Their strategy underscores the confidence conservatives feel that the Supreme Court will rule their way and limit or eliminate Roe v. Wade later this year, and the concern many have that the Texas law could ultimately be undone by a barrage of ongoing legal challenges.

“States don’t want to pass laws that are going to be struck down. They don’t want an exercise in futility,” said Denise Harle, the senior counsel for the anti-abortion group Alliance Defending Freedom. “The prudence of doing 15 weeks right now, when a green light for them is likely, is clear.”

Yet even as they acknowledge the political and legal hurdles, many in the anti-abortion movement say they’re frustrated lawmakers aren’t following Texas’ lead.

“Some national and state groups believe we should proceed cautiously and strategically,” said Kristi Hamrick, the spokesperson for Students for Life of America, which is pushing bills in dozens of states that mirror Texas’, and outlaw the use of abortion pills early in pregnancy. “We respectfully disagree.”

“We want to see less incrementalism,” she added. “This is a time to move in for the win.”

Abortion-rights activists, meanwhile, say they face multiple challenges: They likely don’t have the votes to stop these bills from moving forward and they are struggling to convince a distracted and exhausted public to mobilize against policies that haven’t drawn the attention and outrage of Texas’ unique private enforcement scheme.

“These states are often introducing Texas copycat bills at the same time,” said Jessica Arons, a senior policy council with the ACLU, citing Texas-style six-week bans that have been introduced in Arizona and Florida but have yet to advance. “Then, when they ultimately pass the 15-week bill, it allows them to position it as a reasonable compromise. They’re moving the Overton window and pushing the idea of what is an acceptable center.”

Florida Gov. Ron DeSantis, who signaled he intends to sign the 15-week abortion ban expected to pass as early as this week, told reporters in January that the bill was “very reasonable” and said he believes “a lot of people would be happy with that.”

West Virginia Del. Ruth Rowan called her 15-week legislation “a beginning” and “a good start.”

Arizona state Sen. Nancy Barto on the Senate floor last week said that while she believes “every life should be protected,” 15 weeks is a “common sense limit” and a “step in the right direction.”

Some on the left see in the wave of 15-week bans an attempt to make Democratic lawmakers take a more difficult vote — as polling finds more public support for restrictions on abortions after that point in pregnancy than the more sweeping Texas-style legislation.

“The six-week bans have generated a lot of outrage and protest. So when they pull back with a 15-week ban, it flies under the radar a little more,” said Olivia Cappello, who works on state policy fights with Planned Parenthood. “But any sort of arbitrary limitation on what you can and cannot do with your body and what decisions you can make about your pregnancy has a terrible impact on people and the children they already have.”

The vast majority of abortions in the U.S. happen prior to the 15-week mark — over 90 percent, according to federal data. But thousands of people terminate a later pregnancy each year for a host of reasons — from the discovery of a fetal abnormality to challenges saving up money and arranging travel for the procedure.

Most anti-abortion groups say they understand that conservative lawmakers are going as far as they feel they can, and see a 15-week ban as a major improvement on the roughly 24 weeks allowed under Roe v. Wade.

“This legislation will save approximately 5,000 babies a year, and so I’ll take those 5,000 babies and, if we were playing poker, I’d say I’ll take those 5,000 babies and up you for all of them,” Florida Right to Life President Lynda Bell told POLITICO. “I truly do want to see us go further.”

Advocacy groups on the right have long argued it should be the states — not the federal government — that determine abortion policy, and say they welcome a future where, for example, Florida takes one path while Texas takes another.

“Good minds can disagree on how to best maximize this opportunity, and every state is different,” said Sue Swayze Liebel, the state policy director for Susan B. Anthony List, which is advising dozens of states on the effort. “What is the makeup of their House and Senate? Who is the governor? Who is up for reelection this year? All of that goes together.”

Texas State Rep. Shelby Slawson and Texas State Sen. Angela Paxton listen as Texas Attorney General Ken Paxton speaks to anti-abortion activists at a rally outside the Supreme Court.

Yet other groups on the right, concerned about getting bogged down in costly legal battles, are urging lawmakers to wait until the Supreme Court issues a decision and states know exactly what the law of the land will be.

The anti-abortion group West Virginians for Life, for example, is warning state lawmakers not to push forward either a 15-week abortion ban or a Texas-style abortion ban this year, saying in a letter to state lawmakers on Monday that it is “prudential” to wait.

“We have no idea what the Supreme Court will decide this year in regard to abortion jurisprudence,” the group stressed.

In addition to the pending questions of what the Supreme Court will allow, other experts worry that privacy rights embedded in nearly a dozen state constitutions could stymie efforts to enact total or near-total abortion bans — a legal hurdle that has already blocked bills in Montana and could come into play in Florida, Alaska and other GOP-controlled states looking to restrict access to the procedure.

There is also a concern among anti-abortion-rights advocates that Texas’ law is so unpalatable that it might harm their cause.

In a January letter to lawmakers in multiple states weighing different kinds of abortion bans obtained by POLITICO, Texas Alliance for Life’s special counsel Paul Linton wrote that “states should not enact their own versions of Texas Senate Bill 8” ahead of the Supreme Court’s decision on Mississippi’s law, saying that such bills are “more likely to alienate the justices whose votes we need to overrule Roe than they are to appeal to them.”

Linton pointed to justices’ vocal discomfort about the implications of the private enforcement mechanism of Texas’ abortion ban — which critics have dubbed a “bounty hunter” or “vigilante” scheme — and argued it “smacks of open defiance of the Court and an illegitimate attempt to circumvent its precedents.”

Linton, however, has another complaint about Texas’ 6-week ban that many in the movement share: It doesn’t go far enough. A better path for states, he argues, is passing “trigger laws” that would ban all abortions at any stage of pregnancy if Roe v. Wade is overturned.

“A bill to prohibit abortion only after the unborn child has a detectable heartbeat represents an unprincipled retreat from the comprehensive protection all unborn children deserve,” he wrote.