Alabama and West Virginia voted to tighten restrictions on abortion access Nov. 6.
Oregon voters, meanwhile, rejected an abortion initiative to block state tax dollars from funding abortions except in the case of rape or incest. This was the fourth time voters denied this initiative. It is one of 17 states that allows public funding to pay for the procedure.
Alabama and West Virginia voted to amend their state constitutions to stipulate that they do not protect the right to abortion or require the funding of abortion. This means that both states can prohibit public funding for abortions.
Opponents of the provisions have said these changes will help roll back the U.S. Supreme Court’s Roe v. Wade ruling, which prohibits states from banning abortion entirely. If Roe v. Wade is overturned, states that oppose abortion could deny women the right to obtain the procedure.
“These ballot initiatives play a role because if the U.S. Supreme Court rolls back abortion protections in the U.S. Constitution, and state constitutions are amended so that abortion is no longer protected, then it will be very difficult to successfully challenge abortion restrictions,” Elizabeth Nash, policy analyst at the Guttmacher Institute, told Bloomberg Law.
The Guttmacher Institute is a Washington-based research and policy organization committed to advancing sexual and reproductive health and rights.
Nash said the confirmation of Judge Brett Kavanaugh to the U.S. Supreme Court means the court “has the votes to undermine or overturn Roe v. Wade.” The Senate confirmed Kavanaugh on Oct. 6, and he has openly discussed restricting abortion access.
The approval of these provisions will force abortion rights advocates back to the drawing board to ensure that abortion access isn’t pared back nationwide. Two groups, in fact, may be fighting back with lawsuits against the two states.
Deirdre Schifeling, the executive director of Planned Parenthood Votes, told Bloomberg Law that it’s exploring all options to protect a woman’s right to an abortion and that litigation is a possibility. Planned Parenthood Votes is a super-PAC within Planned Parenthood that advocates for reproductive rights and health care. A super-PAC is a political action committee that isn’t formally affiliated with a particular candidate. There are no limits on how much any single donor can give and no limits on how much they can spend to influence voters.
Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Michael R. Bloomberg, the former mayor of New York City, is the majority owner of Bloomberg Government’s parent company.
The American Civil Liberties Union of Alabama also said they would support and help Planned Parenthood when needed. “We would support any decision by Planned Parenthood,” Randall Marshall, the executive director of the ACLU in Alabama, said. “If there’s a role for ACLU to play, then we’ll definitely join forces.” He also said there isn’t a need for litigation by abortion rights advocates until the federal law matches these state initiatives.
Eric Johnston, an attorney and president of the Southeast Law Institute, told Bloomberg Law that immediate legal action would be unlikely since the amendment hasn’t done any harm yet. The institute defends and protects the “sanctity of human life” by providing free legal assistance to clients, churches, and other religious organizations, according to its site.
“The Alabama legislature would have to pass a statute that creates a cause of action,” he said. “For someone to try and file a suit now saying its unconstitutional is unlikely, because the first question the judge will ask is how is this hurting someone?”
Johnston said if Alabama prosecutes a woman for getting an abortion, for example, abortion rights advocates would “100 percent file a lawsuit.”
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(Updates to include comment from Planned Parenthood Votes, the ACLU of Alabama, and the Southeast Law Institute in the 10th through 15th paragraphs)