“I believe that for the rest of your life, you’re going to remember exactly where you were and what you were doing when you heard the news on Friday, June 24,” David Bereit, the former CEO 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 grasp for a post-Roe strategy
Since these early moments of jubilation over the demise of the 1973 landmark Roe v. Wade decision, however, differences have 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 antiabortion leaders and other people involved in the movement.
“There’s always been a 50-year debate over what’s the best way to bring down Roe v. Wade,” said Clarke Forsythe, the senior counsel for Americans United for Life, an antiabortion law firm and advocacy group. “And now there’s a big debate, and everybody’s involved, about what’s the best road forward — or what are the best roads forward — after Dobbs,” he said referring to Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe.
How the groups and their allies in state legislatures decide to move forward will play a key role in shaping a post-Roe landscape in the United States.
Among the areas of disagreement are whether to try to prevent women in antiabortion states from being able to obtain the procedure or abortion pills across state lines, as well as 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 letting private citizens bring civil cases like in Texas.
A narrow slice of activists take a more extreme stance of imposing criminal penalties on patients who get abortions — but such a position is at odds with the more mainstream antiabortion movement which contends the woman should not be punished.
The looming battles will be waged in state legislatures, as antiabortion groups work with local leaders on passing ambitious plans to ban abortion. Major groups have their own model legislation — or are planning to soon unveil language — that state lawmakers can introduce when legislative sessions resume in a race to influence what a new post-Roe America will look like.
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Leading antiabortion advocates downplayed the divisions among various organizations, contending they amount to a healthy debate that can be found within any social movement.
“There’s always tactical disagreements,” said Kristan Hawkins, the president of Students for Life of America. “I think what’s so great about our movement, though, is that there is that unity of what is our end goal, and how are we trying to transform our culture to be one that respects life.”
But the issues they disagree on are consequential and resolving them could be difficult.
“It was easy to unite against Roe v. Wade,” said Louisiana state Rep. Alan Seabaugh, a Republican who offered an amendment nixing a proposal advanced by a Louisiana House panel in May allowing women who have an abortion to be criminally charged. 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 issue of where you put the line. It’s not clean, neat and easy.”
Abortion rights groups aren’t taking any comfort from the divisions within the antiabortion movement and have vowed to fight restrictions through the courts and the ballot box.
“These are all variations of the same thing,” said Fatima Goss Graves, the head of the National Women’s Law Center. “They are bans on abortion and so we will resist them at every turn.”
Civil enforcement and crossing state lines
Some national antiabortion groups — such as the Thomas More Society — and GOP state lawmakers are seeking to advance proposals allowing private citizens to sue people who help or provide a resident of a state that has banned abortion terminate a pregnancy in another state, The Washington Post previously reported. But some groups, like Alliance Defending Freedom, believe doing so could conflict with the right to interstate travel.
Abortion is now banned in these states. See where laws have changed.
The idea of civil enforcement comes from a novel method used in Texas where the state has deputized private citizens with filing lawsuits against anyone who helps a woman obtain an abortion. That mechanism of allowing citizens to sue — which went into effect last September — has received praise from groups like Students for Life of America, who said they “appreciate Texas’s ingenuity.”
One question is to what degree this legal strategy should be used to enforce abortion bans within a state while another is how or whether it should be used to sue people who help or provide abortions to women traveling from states where the procedure is banned.
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 hasn’t ruled on the merits of allowing private citizens to sue, and it’s not yet clear if the Justice Department will go after states that utilize the new mechanism.
The Thomas More Society typically focuses on litigation, but decided to wade into the legislative arena after the Supreme Court overturned Roe. The conservative legal organization is planning to help legislators craft language using Texas’s mechanism empowering private citizens to sue, which could include prohibiting medication abortion and cracking down on out-of-state abortions. The efforts wouldn’t criminalize the patient.
“I see civil enforcement as important for the entire abortion law because of this issue of public officials not enforcing laws they don’t like,” said Peter Breen, the organization’s vice president and senior counsel. Some antiabortion advocates said they are worried about scenarios where a state’s governor or attorney general is a Democrat and refuses to enforce a ban put in place by a Republican-led legislature.
But Texas’s approach has also received skepticism from groups who contend it’s far too broad.
“We don’t support an open-ended, any Tom, Dick or Harry can use the law,” said Forsythe, of Americans United for Life, which has been behind hundreds of antiabortion bills introduced in state legislatures. “The civil enforcement mechanism should be limited to women injured 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 released a model law, which its top lawyer said he vetted with other major groups. The legislation allows state and local officials — as well as the father or certain family members of the pregnant woman — to sue abortion providers.
According to James Bopp Jr., the NRLC’s general counsel, “we think that it should only be family members” who can sue.
Oklahoma passed a law using Texas’s broad enforcement mechanism earlier this year, while Idaho adopted a more narrow measure more similar to Bopp’s legislation.
Other groups are instead taking a wait-and-see approach. For instance, SBA Pro-Life America — a leading antiabortion organization — is “neutral” on the civil enforcement mechanism as long as the woman isn’t prosecuted.
“[We] generally don’t think it should be taken off the table, especially because in some states you have AGs who have stated they won’t enforce laws passed by the legislative branch,” Mallory Carroll, the group’s spokesperson, wrote in an email.
Rape and incest exemptions
Among leading national groups, there’s unity around banning abortion even in the cases of pregnancies resulting from rape and incest. Such a position has thrust Republicans in an uncomfortable spotlight in recent weeks, as most bans in effect now only include an exception for life of the mother.
Some organizations — like Americans United for Life — say they’re cognizant that some states may choose to allow abortions in the case of rape and incest to muster enough political support to pass new restrictions. Meanwhile, others are more “doctrinaire” on the question of exceptions, said one consultant who works with an antiabortion organization.
“Other groups have taken the practical approach that we’ll never have consensus in America if we don’t include the rape and incest protections … personally, I think that’s the right approach,” said the consultant, who spoke on the condition of anonymity to speak freely.
Abortion foes push to narrow ‘life of mother’ exceptions
Yet, several groups are instead pushing for narrow or to remove exceptions to save the health or life of the mother, arguing they create loopholes that can be exploited. Matt Sande, legislative director of Pro-Life Wisconsin, contends that a doctor can still intervene during life-or-death situations, but that medical providers should also attempt to save the fetus.
“I will not say it’s a slam dunk to pass a total protection statutory abortion ban in Wisconsin,” said Sande. “Among the Republican caucuses, there would be a fight, but it’s a fight worth having.”
Prosecuting providers vs. women
Another division between hard line and more mainstream groups is over prosecuting the woman. Major antiabortion groups have taken pains in recent weeks to publicly oppose the idea, particularly after the Louisiana proposal to criminally charge patients drew national attention.
“As national and state pro-life organizations, representing tens of millions of pro-life men, women, and children across the country, let us be clear: We state unequivocally that we do not support any measure seeking to criminalize or punish women and we stand firmly opposed to include such penalties in legislation,” over 70 groups wrote in a May 12 open letter led by the National Right to Life Committee.
Louisiana abortion ban again blocked by judge
But Bradley Pierce, executive director of the Foundation to Abolish Abortion, helped draft the Louisiana measure and said he was disappointed when antiabortion lawmakers backed away from it.
“I think it revealed a lot of hypocrisy in those who said one thing and did something else,” he said, adding that the bill “would have done exactly what they say they believe. That is, treat a person before birth as being worthy of protection.”