Less than 48 hours after Texas’s abortion law went into effect, banning almost all abortions, West Virginia state delegate Josh Holstein was reminded of the promise that got him elected in 2020.
Holstein ran as a “100 percent pro-life” Republican alternative to the two-term Democratic incumbent. He would pursue a “heartbeat bill” that would ban abortion once cardiac activity is detected, around six weeks of pregnancy. On Sept. 2, the day after Texas became the first state to successfully implement a six-week ban without court interference, a West Virginia resident called Holstein and other state delegates to task in a private post on his Facebook page. He wanted to know: Can we do the same thing in West Virginia?
State legislators responded in the comments.
“I would absolutely support it,” wrote Rep. Joe Jeffries (R), according to a screenshot obtained by The Lily. “I’d support banning abortions completely.”
“I’m definitely onboard,” said Sen. Randy Smith (R).
“I’ll support it,” said Rep. Mark Dean (R).
“As would I,” Holstein said.
Antiabortion legislators across the country see the Texas law as a major breakthrough, especially as the U.S. Supreme Court prepares to hear Dobbs v. Jackson Women’s Health Organization, the case that could bring down Roe v. Wade. While six-week abortion bans have passed in 12 other states, courts have raised questions about their constitutionality, blocking the laws before they could take effect. To sidestep the courts, Texas introduced a unique enforcement mechanism: Because the law empowers any private citizen to sue those who help facilitate an illegal abortion in Texas, abortion rights groups could not anticipate who would enforce the ban, preventing them from filing a successful lawsuit. When asked to stop in and block the law, the Supreme Court refused in a 5-to-4 decision that broke down largely along ideological lines.
Republican legislators in other states immediately started talking about “copycat bills,” a tradition that has been a hallmark of the antiabortion movement for decades. Instead of drafting legislation from scratch, they would use Texas as their inspiration, proposing a version of Senate Bill 8 in their own legislatures. On Sept. 22, Florida became the first state to introduce a bill that mimics the Texas law. Legislators in Missouri, Arkansas, South Dakota and Indiana have also announced plans to follow suit. Newly optimistic about their chances of banning abortions at six weeks, legislators say they plan to prioritize these bills as soon as they go back into session.
That’s what happened in Florida. “Committee sessions began on September 21, and this was proposed on September 22,” said Kelly Nelson, co-founder of the Tampa Bay Abortion Fund, an organization that provides funding for abortions in Florida, where the legislature is solidly Republican. “They did this at the very first opportunity they had.”
Republican legislators have long introduced variations of the same antiabortion legislation, said Mary Ziegler, a law professor at Florida State University and author of “Abortion and the Law in America.” Until recently, she said, the most successful laws originated in Washington, D.C., dreamed up by leaders of national antiabortion groups. For decades, Americans United for Life (AUL), the most prominent of these organizations, has compiled model bills into a “playbook” that state legislators can draw from. The current version, the 16th edition, is 248 pages long, and is available online or in book form at major retailers.
“They felt they had a master plan to build the case against Roe and then litigate it,” Ziegler said. If states “went out on their own,” she added, national organizations worried that they would “dilute the message and undermine the strategy.”
According to a 2019 investigation by the Center for Public Integrity, between 2010 and 2018, more than 400 abortion-related bills were “substantially copied” from model legislation drafted by special interest groups. Sixty-nine of them passed into law.
Organizations like AUL and the National Right to Life generally take an “incremental” approach to antiabortion laws, said Ziegler, opting for bills that slowly chip away at reproductive access, like stricter licensing and ultrasound requirements, rather than more aggressive gestational bans.
But the landscape has shifted significantly in recent years, Ziegler said. As individual states have grown impatient with the pace of the antiabortion efforts coming out of D.C., some have drafted their own, more extreme, legislation. The “heartbeat bill” was first created by Faith2Action, an antiabortion group in Ohio. Founder Janet Folger Porter campaigned aggressively for the bill when it was proposed in the Ohio state legislature in 2011, bringing in pregnant women to “testify” at committee hearings via ultrasound, showing the cardiac activity to the legislators.
While representatives in Ohio refused to vote on the bill — many questioned its constitutionality — the idea soon took hold in other state legislatures. North Dakota became the first state to pass a “heartbeat law” in 2013. In the spring of 2019, after President Donald Trump appointed two conservative justices to the Supreme Court, five other states passed their own six-week bans. Alabama passed a law that outlawed abortion entirely.
Over the past few years, Ziegler said, more state legislators have been sending up “trial balloons.” If an unconventional bill passes through the legislature and the courts intact, other states will copy its approach.
This tactic has normalized bills that most legislators initially deemed “insane” and “highly unconstitutional,” said Aimee Arrambide, executive director of Avow, an abortion rights advocacy group in Texas.
“They introduce them again and again,” she said. “So what at first seems like a bill that shouldn’t go anywhere, you hear it over and over, across the country. That’s how the thought shifts.”
As soon as Rep. Mary Elizabeth Coleman (R) joined the Missouri state legislature in January 2019, she talked to a few Republican colleagues about drafting a heartbeat bill. Soon, they were strategizing on their freshman orientation trip across the state, she said, hashing out the terms together. The six-week ban passed in May of that year, but was blocked. It’s still making its way through the courts.
Coleman, a lawyer who grew up in Texas attending antiabortion rallies at the state capitol, said she was initially “shocked” to hear that S.B. 8 had taken effect. But once she spent more time thinking about the law, she said, its success made perfect legal sense.
“As a lawyer, I don’t see how the Supreme Court could have ruled any other way,” said Coleman, referring to the high court’s decision to let the law stand. “I think it’s brilliant.”
Coleman immediately called the legislators who worked with her on the 2019 heartbeat bill.
“I said, ‘Hey, let’s go. What do you guys think?’ ”
They were all on board to draft a similar bill in Missouri, Coleman said. A few days later, she said, she got on the phone with Jonathan F. Mitchell, the lawyer behind S.B. 8. She plans to introduce Missouri’s version of the Texas law when their legislature reconvenes in January.
“This is my very, very top priority,” Coleman said.
In a staunchly antiabortion state like Missouri, she said, legislators are under pressure to back this kind of legislation, especially in an election year. She feels confident that a Texas-inspired “heartbeat bill” will make its way through the legislature and become law, she said.
Democratic state legislators propose and pass far less abortion-related legislation than their Republican colleagues, Arrambide said. She joined the Public Leadership Institute, a nonpartisan policy center, in 2015 to help create “A Playbook for Abortion Rights,” a 196-page manual of model legislation that mirrored the antiabortion version published by Americans United for Life. The playbook, published in 2016, included bills designed to protect abortion clinics against acts of violence and prevent abortion clinics from having to share medically inaccurate information. Until that point, Arrambide knew of no national infrastructure that allowed legislators who supported abortion rights to share legislative ideas and borrow from one another.
Legislators in several dozen states have proposed versions of bills similar to those in the Public Leadership Institute’s manual, said Bernie Horn, senior director for policy and communications at the Public Leadership Institute. But Arrambide says Democratic legislators are still often hesitant to expend the political capital necessary to prioritize abortion legislation.
She blames “abortion stigma.”
“It’s really hard to get people to advocate for a right they’re uncomfortable talking about and that they think is already settled,” she said.
It’s been this way since the 1970s, said Ziegler, when Roe v. Wade legalized abortion across the country, and abortion rights groups went on the defensive.
“Since then, the antiabortion movement has been dictating the terms of the debate in the states,” she said.
Antiabortion legislators will be keeping a close eye on Texas, said Ziegler, watching to see how the public reacts to the six-week ban. In Florida, Gov. Ron DeSantis (R) has been notably quiet on S.B. 8, as well as the version drafted by his own legislature, she said. The governor, along with many other prominent politicians across antiabortion states, are probably holding back until they know whether their own constituents think S.B. 8 went too far, she said — or until the Supreme Court rules in Dobbs.
Many abortion rights advocates in Florida are bracing for their state to follow Texas. On Sept. 10, 10 days after the Texas ban took effect, Florida Senate President Wilton Simpson (R) named a new chair for the Senate Committee on Children, Families and Elder Affairs, replacing Democrat Lauren Book, an outspoken abortion rights advocate, with Republican Ileana Garcia.
As committee chair, Book had blocked antiabortion legislation in previous years, according to Nelson of the Tampa Bay Abortion Fund. With Book gone, Nelson said, the path is clear for Florida to enact its own version of S.B. 8.
The West Virginia legislature is in the middle of a special session and fully focused on redistricting, Holstein said. But he suspects legislators will turn to abortion soon. When they do, he said, a Texas-inspired bill is likely to have “overwhelming support in both chambers,” he said: “I really don’t see any stumbling blocks.”