Republicans Wage State Fights to Walk Back Abortion Rights Votes

Republican legislative majorities in states where voters recently approved reproductive rights measures are pushing legislation to reinstate abortion bans and other restrictions that would complicate how courts interpret the newly enshrined protections.

In Missouri and Montana, where Republicans control both chambers and the governor’s office, bills are moving through the legislature to put forth new constitutional amendments banning abortion in most cases or recognizing embryos and fetuses as persons under state law. The amendments, if approved by voters, are likely to spur state litigation to determine which right supersedes the other.

Republicans in Arizona are also aiming to enact targeted restrictions on abortion, including new requirements for physicians prescribing abortion-inducing drugs. Voters in each of these states approved constitutional amendments in November protecting abortion until fetal viability, or roughly 24 weeks of pregnancy.

Reproductive rights advocates and Democratic lawmakers say these moves have forced them to go on defense, prepping their own legislation and readying for potential litigation to block proposals that they say could have far-reaching implications for all areas of reproductive health care, including contraception and fertility treatment.

At the center of this battle is an anti-abortion movement emboldened by the Trump administration, which recently withdrew from a Biden-era challenge to Idaho’s ban and says the issue of abortion should be left to the states.

“Lawmakers are testing how far they can go, believing at the very least they won’t face any backlash from the federal government,” said Jennifer Driver, senior director of reproductive rights at State Innovation Exchange, an organization working with state legislatures to adopt left-leaning policies on abortion and other issues.

Missouri, Montana

In the Republican-controlled governments of Missouri and Montana, anti-abortion lawmakers and lobbying groups see major opportunities to target the amendments.

Students for Life of America’s lobbying campaign across 26 states included telling lawmakers that “even if your state has adopted one of these radical late-term abortion ballot measures,” you “can proceed forward protecting women and children,” Kristan Hawkins, the organization’s president, said in an interview.

In Missouri, the group is meeting with the governor and lawmakers to develop ballot measure language asking voters to add an abortion ban to the state constitution. The proposal would mirror the state’s previous abortion law that a judge struck down in December, a month after Amendment 3’s passage.

While Missouri Republicans have filed various versions of the new ballot measure, the one that’s the furthest along in the legislative process (HJR 54) would also add to the constitution a ban on gender-affirming surgeries and medications for minors.

Another bill (HB 195) would allow criminal penalties on medical professionals who don’t provide life-saving care to a “liveborn child” during or after an abortion or attempted abortion. The bill’s sponsor, Rep. Brian Seitz (R), said the legislation aims to protect women “who have no recourse” if there are complications.

“I do not think that the Missouri voter was thinking that when they went into the voting booth,” Seitz said of Amendment 3, which allows abortions after viability if a treating health-care professional determines it’s necessary to protect the “life or physical or mental health of the pregnant person.”

Students for Life’s campaign also includes model legislation to require health-care providers give patients receiving abortion medication “a catch kit and medical waste bag,” to collect any fetal remains for “proper disposal.”

A bill that sought to impose this requirement in Montana (HB 555) was tabled in a state House committee last month. Hawkins said she expects to see more action on this legislation in future sessions.

Meanwhile, another bill in Montana (HB 316) that advanced out of the House Judiciary Committee in February would put a ballot measure before voters to define “person” as “all members of mankind at any stage of development, beginning at the stage of fertilization or conception.”

Arizona

In Arizona, where Democratic Gov. Katie Hobbs is a vocal proponent of abortion access, the Republican majority in the state legislature faces a more difficult path toward enacting restrictions.

The state House earlier this month passed a bill (HB 2681) that would require physicians prescribing abortion-inducing medication to independently verify that a pregnancy exists, determine the patient’s blood type, and inform the patient of potential side effects.

The bill’s sponsor, Rep. Rachel Keshel (R), is also sponsoring a proposed ballot measure (HCR 2058) that would allow the state to regulate abortion before fetal viability if it’s “rationally related to a legitimate state interest.”

Rebecca Reingold, an associate director at Georgetown University’s O’Neill Institute for National and Global Health Law, said this is a “less rigorous judicial review standard” than the “compelling state interest” in the voter-approved amendment. This means it’s more likely restrictions “would be upheld as constitutional by state courts,” Reingold said.

But Arizona state Rep. Stephanie Stahl Hamilton (D), who last year led efforts to repeal the state’s 1864 abortion ban, said in an interview that Republicans don’t have a strong enough majority to override Hobbs’ veto on any of these bills.

“It pays right now to have the governor who is supportive of abortion care,” Stahl Hamilton said.

Future Court Battles

If any of the Republican bills are successful, courts will be forced to weigh in on how they stand up to the reproductive rights amendments, Reingold said.

A vote in Montana to approve the proposed fetal personhood amendment, for example, could mean “gutting constitutional protections of the right to abortion,” she said.

Driver said in a February webinar with other abortion access advocates that the Republican proposals to establish fetal personhood “could imperil access to abortion, birth control, IVF, and other fertility treatments.”

Her organization is “drafting model policies for addressing and interpreting bills,” and crafting their own legislation to strengthen abortion access.

“We have to really be thinking much broader and expect that these legislators, who are incredibly emboldened in this moment, are going to try every single attack under the sun,” Driver said.