Jacquelyn Martin/AP
Democratic-led states are racing to expand abortion rights within their borders ahead of a looming US Supreme Court decision that could leave millions of people unable to access care in their own states.
As conservative states such as Texas and Idaho pass increasingly restrictive measures on abortion or other forms of reproductive healthcare, California, Illinois, Oregon, Washington, and Vermont are enacting policies or legislation aimed at making it easier and cheaper to obtain an abortion within their borders. The aggressive effort is not only intended to ensure access for their own residents but to guarantee care to thousands of people each year who can't have the procedure closer to home.
The changes include millions in funding for abortion care, eliminating out-of-pocket costs for the procedure, and amendments to enshrine the right to an abortion in their state constitutions.
"We haven't seen this level of investment in abortion protection since the late 80s and early 90s, the last time we thought Roe v. Wade was going to be overturned," said Elizabeth Nash, a state policy analyst at the Guttmacher Institute, which studies reproductive rights across the world.
"What history has shown is that it's taken real threats to federal abortion rights in order for states to start adopting protections, at a large scale," she said.
But lurking in the background of this wave of policy changes is a harsh reality.
The Supreme Court could rule as early as May on a Mississippi 15-week abortion ban, which under current precedent is unconstitutional. Roe v. Wade guarentees the constitutional right to an abortion until the stage of fetal viability, which is about 23-25 weeks of pregnancy. Should the court uphold the Mississippi state law, it could open the door to other pre-fetal viability bans from states hostile to abortion.
The court — where conservative justices currently outnumber liberal ones 6-3 — could also issue a decision that overturns Roe v. Wade. If that happens, as many as 26 states could outlaw abortion or make it nearly impossible to get the procedure according to the Guttmacher Institute.
That means in a worst-case scenario for abortion access such a decision would put abortion-friendly states in the minority.
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No state has been more vocal about expanding abortion rights than California, and its Democratic Gov. Gavin Newsom hopes it will be a "sanctuary" for people seeking reproductive care. California's constitution guarantees the right to an abortion up until the point of fetal viability — about 23 to 25 weeks of pregnancy — and allows the procedure further along when medically necessary. California already has laws that prevent the state from interfering in a person's abortion.
Last year, California abortion providers, lawyers, abortion funds, state lawmakers, and members of the governor's staff formed the California Future of Abortion Council, which issued a report this year with dozens of policy proposals for expanding abortion access in the state.
On March 22, Newsom signed a bill that eliminated out-of-pocket costs for abortion as part of the state's efforts to increase accessibility to reproductive care.
"As states across the country attempt to move us backwards by restricting fundamental reproductive rights, California continues to protect and advance reproductive freedom for all," Newsom's office said in a statement accompanying the bill signing.
In February, Vermont's House of Representatives approved a state constitutional amendment that would guarantee "personal reproductive liberty"; it will go before voters in a November referendum. Vermont had already passed a law guaranteeing the right to an abortion in 2019.
Similarly, the Colorado legislature on March 24 passed the Reproductive Health Equity Act, which would give people the right to choose whether to have an abortion or continue a pregnancy. It also explicitly states that fetuses, fertilized eggs, and embryos do not have independent rights under Colorado law. Gov. Jared Polis, a Democrat, is expected to sign the bill.
In Illinois, where abortion is legal until the point of fetal viability, clinics are preparing to take on an influx of out-of-state patients from neighboring Missouri, Iowa, Indiana, and other Midwestern states that have been hostile to abortion access.
And in Oregon, the state legislature approved the Reproductive Health Equity Fund, which set aside $15 million from the state's coffers to expand access to the procedure. The money could be doled out to abortion providers to pay for equipment and operating costs, or to abortion funds that give low-income patients financial assistance to pay for the procedure.
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Yet just because a state has opened its doors to patients seeking abortions, doesn't mean they'd be able to come. Even the most optimistic abortion advocates say that while blue states expanding abortion care would help people get the procedure in a post-Roe world, the burden and cost of getting care across state lines would likely be monumental.
Kelsea McLain, the health care access director for the Yellowhammer Abortion Fund in Alabama, said that the cost of abortions had already skyrocketed because of the pandemic and an increase in travel costs due to distance and inflation.
McLain praised states like Oregon that set aside funds for abortion care, but she said, "I imagine $15 million is going to go quick."
The Yellowhammer Abortion Fund provides financial assistance to people to help cover the cost of an abortion. It distributes about $18,000 each month, giving allotments of $150 to $300 to help people pay for gas, bus tickets, child care, or the abortion itself. McLain said they had the money to support about 40 to 50 people each week.
Should Roe v. Wade be weakened or overturned, a large portion of the US South including Alabama could lose access to abortion care, necessitating further travel — and driving up costs even more. Instead of bus tickets, people may have to purchase airfare. And the longer a patient has to wait to receive an abortion the more expensive the procedure becomes.
"People don't understand how much money is needed to pay for abortion in this country," McLain said. "And the cost of abortion is going to double for people when you consider the travel expenses."
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McLain added that the Yellowhammer Abortion Fund has already heard from people who struggled to afford gas to drive several hours — or even days — to the nearest clinic with an appointment. And she feared those appointments would become much harder to get.
"The clinics that are allowed are going to fill up immediately," she said. "They're going to have scheduling problems for people in and out of the state."
Fabiola Carrión, director of reproductive and sexual health at the National Health Law Program, told Insider that she was concerned that providers from states that allow abortion could come under legal fire for helping patients in other states. Carrión, who participates in the California Future of Abortion Council, said the state should consider laws that would protect medical professionals who provide care via telehealth to other states.
In a worst-case scenario, it would be nearly impossible — or outright illegal — to get an abortion in over half the states in the US. There are already indications that in a post-Roe v. Wade landscape, states that restrict abortion access would attempt to prevent their residents from getting care outside its borders. In March, Missouri began considering legislation that would make it illegal to "aid or abet" an abortion, even if the assistance came from out of state.
"Just like it's happening politically that are two Americas, I think there are going to be two Americas when it comes to abortion access," Carrión said.
