By Sarah Ferris - 07/03/16 10:30 AM EDT
Abortion rights groups are gearing up for a major assault against dozens — and ultimately hundreds — of state laws after their biggest legal victory in a generation this week.
Lawyers for groups such as Planned Parenthood say the Supreme Court’s historic ruling Monday is opening a new front in the decades-old war over abortion access.
“We’ve reached a tipping point,” Helene Krasnoff, senior director of public policy litigation and law at the Planned Parenthood Action Fund, told reporters Thursday as she announced a campaign to repeal anti-abortion laws in eight states.
In its 5-3 decision, the court not only struck down two major provisions in Texas, but also set a legal precedent that will likely make it tougher for states to defend existing anti-abortion laws.
Abortion rights advocates, who have been on the defensive in state legislatures for the last half-decade, now say the courts will be on their side as they try to regain lost ground.
Planned Parenthood announced Thursday it would actively lobby in eight states with laws on the books resembling those struck down in Texas on Monday. It also promised “many more states will follow in the coming weeks.”
Krasnoff said they will first push for legislatures to repeal laws on their own — a far cheaper option for both Planned Parenthood and those state leaders. If that fails, however, it would require legal action.
The Center for Reproductive Rights, the group behind the most recent Texas case, also filed the first of what will likely be many lawsuits on Thursday. This one is a direct challenge of all seven abortion laws passed in Louisiana this year.
Janet Crepps, senior counsel for that group, said the ruling was “an important, literally once-in-a-generation opinion” that will have a ripple effect over several years.
“Now that we have this clearer standard and protection, I think there is an opportunity to go back and take a look at what the states have on the books,” Crepps said in an interview Friday.
Even without action from outside groups, the court’s ruling had an immediate impact this week.
The day of the decision, Alabama Attorney General Luther Strange said the state would drop its appeal of an abortion law because “there is no good faith argument that Alabama's law remains constitutional in light of the Supreme Court ruling.”
A day later, the Supreme Court rejected appeals from Mississippi and Wisconsin to preserve abortion restrictions that had been struck down in lower courts.
Judges in several other states — including Indiana and Florida — have also temporarily or permanently wiped out anti-abortion laws this week in light of the ruling.
Texas’s sweeping law, passed in 2013, had required doctors to have admitting privileges at local hospitals and required clinics to meet the same standards as surgical centers.
A total of 22 states have laws on the books requiring clinics to meet those standards, even in typically liberal states like Connecticut and Rhode Island, according to the Guttmacher Institute, a nonprofit research group.
Five states have admitting privileges requirements, though many were already being challenged in court.
Overall, states have passed a total of 288 laws restricting access to abortion in the last five years, four times as many laws aimed at protecting access, according to Guttmacher.
The court’s decision on Monday does not directly apply to laws already in place, but it creates new reasons for groups to challenge them.
Lobbying efforts by Planned Parenthood and its allies will be concentrated on a handful of red states that have pushed the most anti-abortion laws. Ten states — led by Kansas, Oklahoma, Arkansas and Arizona — account for 60 percent of all new anti-abortion laws passed since 2011.
The attempts to roll back anti-abortion laws could also blur into separate plans to build a ground game to help elect presumptive Democratic presidential nominee Hillary Clinton this fall. Four of the states where Planned Parenthood plans to challenge abortion laws are expected to be swing states in 2016: Arizona, Florida, Pennsylvania and Virginia.
The now-voided provisions in Texas had been part of a broad legislative strategy by anti-abortion activists. The approach revolved around the promotion of what have been dubbed TRAP laws, or Targeted Regulation of Abortion Providers.
Many were passed for the first time in Texas but have since spread across much of the southern half of the U.S.
A major force behind the proliferation of these laws is Americans United for Life, an anti-abortion advocacy group that has crafted model legislation to distribute to dozens of states.
The powerful group has led a state-by-state strategy — mostly out of the public eye — that is now starting to be mirrored by its counterparts who support abortion rights.
For the first time, a progressive group called the Public Leadership Institute will host hundreds of state legislators from 40 states in D.C. next week for a strategy session about “pro-active” laws to protect abortion access.
That state policy summit will be headlined by Amy Hagstrom Miller, owner of Whole Woman’s Health, whose abortion clinics were at the center of the Supreme Court’s Texas case.
“We feel like it’s long overdue,” the group’s founder and president, Gloria Totten, said in an interview Friday, referring to the new energy in her movement created by the Whole Woman’s Health ruling.
The Public Leadership Institute hopes it can deliver something of a counterpunch to the growing influence of the anti-abortion movement since 2010. Totten added that the court’s decision “creates a major opportunity for us” — one that she hopes can become clearer after next week’s policy summit.
Legal advocates for abortion rights also say the court’s decision makes it tougher for states to enact new restrictions in the future.
In the nearly 40-page decision by the four liberal justices and perennial “swing vote” Anthony Kennedy, the Supreme Court made clear that states would have to prove a “legitimate interest in protecting women’s health.”
The court’s opinion placed a strong emphasis on medical “benefits” from each law and what could be described as “necessary” protections — and decided that neither part of the Texas law passed those tests.
Even before the Texas case reached the Supreme Court, abortion rights groups had been aggressive in challenging restrictive laws.
But many of those challenges ended in deadlock in one particular place: the Court of Appeals for the Fifth Circuit, the federal court with jurisdiction over large swaths of the South.
“It’s not that we weren’t going after the laws. It’s just that we couldn’t seem to win,” Crepps said. “We would get good decision from federal district courts, then the Fifth Circuit would overturn.”
That could change now, she said: “We do think this is going to make a difference.”
- This post was updated July 5, 2016 at 11:56 a.m.