Since the devastating loss of Roe v Wade, the abortion rights movement has seen historic levels of support for its cause, particularly through major victories on state ballot initiatives, with more expected this November. But as advocates move to re-enshrine the right to abortion at the state level, a struggle has emerged over whether to reproduce Roe’s legal framework – or go further.
Roe v Wade, which was decided 51 years ago on Monday, protected the right to abortion until fetal viability – the point at which a fetus can survive outside the uterus – which is widely accepted to be at roughly 24 weeks. A number of ballot campaigns slated for November seek to bring back that standard – but a group of advocates is banding together to declare that the broader movement is engaging in harmful compromises when it could instead use the momentum to push for “clean” policies that don’t draw a strict limit to abortion access.
“There is an enormous amount of pressure being put on leaders across states to run ballots whether they are good or bad,” said Bonyen Lee-Gilmore, vice-president of communications at the National Institute for Reproductive Health (NIRH), an advocacy group that is leading an effort to push the abortion rights movement to go beyond the Roe framework.
The group has joined forces with several other organizations to create an entity called the Learning and Accountability Project (LAP), that fights for what they call “clean” measures. The coalition plans to conduct polling and research to fight for expansive policies, such as ensuring insurance coverage for abortions, and allowing minors to obtain abortions without parental consent. They also plan to create education campaigns about the problem with viability.
Pamela Merritt, executive director of Medical Students for Choice, said this was an opportunity to avoid past mistakes. “We don’t have to recreate [Roe],” she said. “We don’t have to do this.”
The supreme court enshrined viability as a legal compromise in Roe to balance the rights of pregnant women against the state’s interest in potential life. But the viability line, advocates say, left behind people who need later abortions and set the stage for Roe’s downfall: anti-abortion activists argued it was an arbitrary standard in the case that overturned the seminal decision.
The project also includes the Society of Family Planning, Medical Students for Choice, Colorado Organization for Latina Opportunity and Reproductive Rights (Color), the advocacy group Patient Forward; DuPont Clinic; and the abortion provider Dr Colleen McNicholas.
Restrictions on reproductive healthcare have never been evidence-based, said Dr Jenni Villavicencio, interim director of public affairs and advocacy for the Society for Family Planning and a later abortion provider. “Having the government and politicians who are not scientific experts come in and tell us how to provide essential healthcare is inappropriate and doesn’t work,” she said.
Local affiliates of Planned Parenthood and the ACLU are championing ballot measures with viability limits in states including Arizona, Florida and Nevada, while groups such as the Fairness Project and other consultants are involved behind the scenes on polling and ballot language. Often, advocates behind such measures argue that viability limits are necessary to win, and these campaigns have been increasingly folded into Democratic electoral strategy. But members of the NIRH coalition are alarmed about the potential damage of inserting Roe’s compromise into state constitutions.
People need abortions later in pregnancy for various reasons, including new medical diagnoses, delays in care caused by abortion restrictions and clinic closures, financial barriers such as a lack of paid time off or childcare, and simply discovering their pregnancies late.
Sarah Standiford, national campaigns director for Planned Parenthood Action Fund, said ballot measures were just one tool they plan to use to restore access in the years to come. Decisions around such measures are state-specific, she said, and groups must balance the competing needs of writing language that protects abortion access and also withstands legal challenges and wins a majority of voters. “That may ultimately necessarily advance a policy that is far short of the ideal,” she said.
Aurea Bolaños Perea, strategic communications director for Color, said the reproductive rights movement had only progressed because groups like hers had pressured decision-makers to challenge the status quo.
As a Black woman in the movement, Merritt said she could not support proposals that trade away vulnerable people’s access and affect future providers’ training. “‘Some rather than none’ has always screwed over people who look like me,” she said, citing the 19th amendment, which formally granted American women the right to vote, but in practice kept that right out of reach for Black women. “It is classic, second-wave feminist analysis that has historically hurt people who are marginalized,” she said of viability ballot campaigns.
For abortion providers, the issue isn’t theoretical. “When I think about who’s going to be harmed, I see specific patients. I see faces. I see the teddy bear and the 10-year-old and the tears of her mom,” said McNicholas, an all-trimester provider.
Framing restrictions as a political necessity reflected the movement’s internalized stigma around later abortion, said Erika Christensen, co-founder of Patient Forward, which works to ensure access throughout pregnancy. Christensen, who had to travel out of state in 2016 for a third-trimester abortion after discovering a fatal fetal anomaly, said the push for viability was an especially flawed strategy in red and purple states like Arizona, where she lives, because it leaves the door open for hostile legislatures to pass bans criminalizing abortion later in pregnancy. “The stakes are higher in the so-called ‘red’ states. It’s where so many people are suffering already,” she said. “Why are you codifying the circumstances of the suffering into our constitution?”
LAP also believes current ballot campaigns are doubling down on harmful anti-abortion stigma by conceding that banning later abortion is “reasonable”, rather than framing abortion as a fundamental right, Merritt said. And they argue that permanently enshrining limits in state constitutions could deny people abortions and increase the risk of criminalization for abortions and miscarriages later in pregnancy.
As a tax-exempt non-profit, the coalition cannot oppose or endorse ballot measures, but they hope voters can make informed choices. “We have to be transparent and honest to pro-abortion supporters in these campaigns. So if it’s not perfect, we need to own that,” Lee-Gilmore said.
“Every single right I have in this country as a Black woman – every single one – I have because people did not accept ‘this is as good as it gets,’” Merritt said. “I simply will not accept reproductive rights activists acting like we need to throw in the towel.”
