When the South Carolina legislature convened on Jan. 12, one issue took priority over any other. Senate Bill 1, the first piece of legislation introduced on the Senate floor, bans most abortions, outlawing the procedure once a doctor can detect a fetal heartbeat — around six weeks — except in cases of rape and incest, when there is a fatal fetal anomaly, and when a mother’s life is at risk.
SB 1 cleared the state Senate on Thursday. Now it will head to the South Carolina House, where it will almost certainly pass, before making its way to the desk of Gov. Henry McMaster (R).
The bill’s swift passage in the Senate was a clear result of the 2020 election, said Vicki Ringer, the director of public affairs for Planned Parenthood in South Carolina: The Republicans gained three Senate seats in November, strengthening the conservative majority. Those extra seats emboldened Republican legislatures to pursue extreme antiabortion regulations, Ringer said. Before this week, she said, the South Carolina Senate had not passed any version of an abortion ban since 2016.
A similar pattern is playing out in state legislatures across the country, many of which convene for the year in January or February. While Democrats now hold the White House and both houses of Congress, they lost ground at the state level, where the vast majority of abortion-related legislation is introduced and passed into law. It’s a “dire reality” for abortion rights, especially with a new 6-to-3 conservative majority on the Supreme Court, said Bonyen Lee-Gilmore, the Director of State Media Campaigns at Planned Parenthood. State legislatures will rush to pass antiabortion legislation, she said, hoping the sheer number of bills pressures the Supreme Court to hear more cases related to abortion.
“State legislators are going to be passing pro-life policy in 2021 more aggressively than the last two years,” said Joshua Edmonds, executive director of the Georgia Life Alliance, an antiabortion nonprofit based in Atlanta. Looking at the election results, he said, it’s “easy to miss” that the Democrats underperformed in the U.S. House and in state legislatures.
Antiabortion advocates are paying attention, he said.
There are different strategies to limit abortion rights at the state level. Some states, like South Carolina, are pursuing the “abortion ban” approach, passing sweeping legislation that outlaws abortion after a certain point in a woman’s pregnancy. While these measures tend to make headlines, Lee-Gilmore said, they likely pose less of a threat to abortion rights than bills that institute specific restrictions on abortion, requiring additional ultrasounds or waiting periods, for example. These bills — which still inhibit abortion access, especially for low-income women and women of color — are far less likely to be struck down in court.
Twenty-nine states across the country now have antiabortion majorities. Here’s a look at the states that advocates on both sides of the abortion debate say they’ll be watching most closely over the next few weeks, as antiabortion bills make their way through legislatures.
The abortion ban, which would make abortion illegal after the six-week mark in a pregnancy, will likely pass in the House this week and could land on the governor’s desk as early as next week. It will almost certainly be the first statewide abortion ban to pass in 2021. While the wave of abortion bans passed in 2019 were all challenged in court, and subsequently prevented from taking effect, advocates can’t say for sure whether abortion bans will play out the same way this year. Former president Donald Trump appointed an unprecedented number of judges to the lower courts, meaning that courts are considerably more conservative than they were even just a few years ago. Antiabortion legislators in South Carolina “genuinely believe this new Supreme Court will overturn Roe v. Wade,” said Ringer. They hope this legislation will be part of a wave of bills that forces that change.
The Kansas Senate approved a ballot measure on Thursday that will allow Kansans to decide whether they want abortion to be a constitutional right. The measure, if passed, would amend the state’s constitution to say that women do not have the right to an abortion, allowing the state legislature to more freely regulate the procedure. The conservative Kansas legislature has been hamstrung by the state courts in recent years, said Jeanne Gawdun, director of government relations at the antiabortion nonprofit Kansans for Life, unable to actually implement many of the regulations that passed in the Kansas House and Senate. The ballot measure, dubbed “Value Them Both,” failed to pass by four votes in 2020, but quickly passed in 2021, in a state legislature that is considerably more conservative than it was last year.
While Texas’s deadline for new legislation isn’t until March 8, the state legislature has already introduced 17 abortion-related bills. The bills “run the gamut,” including total bans on abortion, and bans after six weeks and 12 weeks, said Courtney Chambers, the Texas advocacy director at Whole Woman’s Health Alliance, a network of abortion clinics. It’s not clear that these bans would be struck down by the courts if they were passed in the legislature, she said. The Fifth Circuit Court, which includes Texas, is “extremely conservative,” said Chambers — and especially with the addition of Justice Amy Coney Barrett to the Supreme Court, she said, circuit court justices might be less likely to declare the bans unconstitutional.
Texas advocates are also watching a bill that would limit the time frame for medical abortions, or the abortion pill. Under the proposed bill, patients would be able to receive a medical abortion up to 49 days, or seven weeks, into their pregnancy, down from the current 70 days. Because women usually can’t verify their pregnancy on an ultrasound until five or six weeks into the pregnancy, Chambers said, “they’d have a very small window.”
The Montana House is set to pass four major antiabortion bills this week. Legislators were galvanized by the 2020 governor’s race, when voters elected Greg Gianforte, their first Republican governor in 16 years, who is staunchly opposed to abortion, said Lee-Gilmore. Until now, Montana’s legislature has been beholden to a Democratic governor, less likely to pursue antiabortion legislation that would trigger the governor’s veto. The current wave of bills includes legislation to ban abortion after 20 weeks, restrict access to the abortion pill and require abortion providers to offer patients an ultrasound. Another bill would have Montanans vote on the “Montana Born-Alive Infant Protection Act,” which would require doctors to care for babies born alive during abortion procedures. (This situation is extremely rare, and infanticide is already illegal.)
“It’s jarring because all four bills are moving at the same time,” said Lee-Gilmore.
Montana “tells the story of the direct connection between elections and your abortion access,” she added: If a Democrat had won the governor’s race, these bills would have no way to become law.