The Increasingly Complicated Map of Abortion Rights

When Democrats in Nevada landed a political trifecta in last year’s midterm elections, adding the governor’s office to their control of the state legislature, pro-choice advocates saw their opportunity to strengthen abortion rights.

They tapped newly elected Yvanna Cancela, the state’s first Latina senator, who was part of a dramatic sweep that led to the country’s first majority-female state legislature.

Cancela’s bill, the Trust Nevada Women Act, was signed into law in May. It removes criminal penalties for abortion providers as well as a requirement that doctors tell patients about the emotional implications of an abortion or ask about marital status or age.

It passed the Nevada legislature days after Alabama Gov. Kay Ivey signed what to date is the nation’s most restrictive abortion ban, making it a felony for a doctor to perform or attempt to perform an abortion during any stage of pregnancy, with no exemption for rape or incest.

Nevada isn’t the only bright spot for abortion rights. Seven states this year expanded abortion or reproductive health access, news of which has been mostly lost amid the furor over abortion bans in states across the Southeast and lower Midwest—in what some pro-choice advocates call “a race to the bottom.”

While many of the measures had been on the drawing board long before the recent abortion bans, a lot of movement around them occurred in direct response to the bans, said Andrea Miller, president of the National Institute for Reproductive Health and the NIRH Action Fund.

“The reality is that what we’re seeing this year is unprecedented activity in state legislatures around abortion rights and abortion access,” Miller said. “And they’re moving at an accelerated pace in widely divergent directions. It is really a unique moment in time that we’re in.”

In recent weeks, Miller said, the bans as well as the approaching endings to legislative sessions “actually inspired and energized a number of states to take their proactive bills across the finish line.”

Among progressive measures this year:

Illinois: The measure establishes “the fundamental right” of a pregnant woman to have an abortion, stating that “a fertilized egg, embryo, or fetus does not have independent rights.” It repeals the state’s 1975 abortion law and its provisions that called for spousal consent, waiting periods, criminal penalties for physicians who perform abortions, and other restrictions on facilities where abortions are performed.

Vermont: In a state that does not restrict abortion, Vermont’s Republican governor signed a comprehensive no-limits measure to ensure decisions around abortion remain between a woman and her health care provider.

Maine: A pair of bills allows health care professionals who are not physicians to perform the procedure and expands MaineCare coverage for abortions.

New Jersey: A measure here would keep reproductive health providers’ and patients’ personal information private to prevent harassment.

New York: Passed in January on the 46th anniversary of Roe v. Wade, the Reproductive Health Act protects access to abortion if the landmark decision is ever overturned by the U.S. Supreme Court. It decriminalizes abortion and allows some late-term procedures in cases where the fetus is not viable or when necessary to protect the mother’s life. 

Separately, New York also recently dedicated $250,000 to the New York Abortion Access Fund, which will help cover the cost of abortions for over 500 people, including those who need to travel from other states to obtain abortions there.

And across the country, pro-choice progressives have been pushing back in other ways, too.

In the wake of the abortion bans, more than 40 elected prosecutors from 24 states, including 12 attorneys general, pledged to use their prosecutorial discretion to refuse to criminalize abortion. Their decision could be critical in the coming months as the bans are litigated in court.

What all these state actions lead to is an increasingly complicated map—a virtual patchwork of abortion rights.

“Probably about half the states have five or more restrictive laws on the books that create incredible hurdles and barriers,” Miller said, “particularly affecting those who are in more and more marginalized situations—women of color, low-income women, young women, women living in rural settings.”

Abortion access and abortion rights, she pointed out, begin and end with the state. Roe v. Wade, the U.S. Supreme Court decision that ruled abortion is constitutionally guaranteed by the 14th Amendment, set the bar for how low a state can and can’t go in restricting a woman’s right, she said. 

Many of the recently passed laws restricting abortion—and all the so-called heartbeat bills—contradict Roe v. Wade.

“We know how critical it is for states that can, to really step up and enact the kinds of laws that will ensure that abortion care is available and accessible,” Miller said, “regardless of whether the Supreme Court gives the green light to those states that want to go ahead and let the bottom fall out.”

In Nevada, for example, the state’s first Democratic-controlled government in nearly three decades not only updated abortion rights, but passed a range of progressive measures—from increasing the minimum wage to $12 an hour to passing a paid leave bill to approving measures to benefit sexual assault victims.

“We had policies that are rooted in ensuring that women have economic success and passed more laws related to sexual violence than in any other session,” said Cancela, who was initially appointed to the Nevada Senate in 2016 but elected in November.

“It’s part of the national narrative: Women don’t want other people making decisions about their lives,” she added. “It’s part of this national moment that we are in, with women standing up and fighting back for the rights that women before us have fought for.”

“There was always a commitment from the onset,” Cancela said, “but I think after what happened in Alabama and later in a number of other states, it felt even more important. I think it elevated the commitment we had to get the bill through.”