In April, the Pennsylvania House of Representatives passed a law banning abortions in which a woman has “a prenatal diagnosis of, or belief that the unborn child has, Down syndrome.” The measure passed by a vote of 117-76. All but four Republicans voted for the bill and surprisingly 14 Democrats crossed party lines to support the bill as well. The bill now heads to the Senate for a vote. If passed, it will face a certain veto by Democratic Gov. Tom Wolf, who opposes the bill. That’s the good news.
The bad news is that Pennsylvania is joining a host of state legislatures that are banning abortions in a wide variety of circumstances. Some ban abortions at particular stages of pregnancy after there is a fetal heartbeat or after 20 weeks of pregnancy. Others ban abortions for particular reasons such as sex selection or fetal anomalies. Still other laws ban particular types of abortion procedures, usually those used in the second trimester of pregnancy. Most recently, Alabama banned nearly all abortions.
These laws, which are clearly unconstitutional under the Supreme Court decisions in Roe v. Wade and Planned Parenthood v. Casey, make doctors criminally liable for performing medical procedures that are now both safe and common. Some of the laws subject women to criminal penalties as well. The specter of antiabortion district attorneys and police hauling doctors and women into court to defend their personal private choices is abhorrent to the majority of Americans who support the current law that protects a woman’s right to make childbearing decisions. A 2018 poll from NBC News and the Wall Street Journal finds that 71 percent of American voters believe that the Roe decision, should not be overturned. Just 23 percent say the ruling should be reversed.
This spurt of antiabortion activity in the states is intended to force the newly constituted, conservative Supreme Court to revisit the legal protections for abortion found in Roe and Casey. Just this week, the Supreme Court refused to review an Indiana law, enacted in 2016, that banned abortion anytime in pregnancy when sought solely based on the fetus’ race, sex, or because it had been diagnosed with Down syndrome or another nonfatal disability.
Despite sidestepping this case, there are several other cases in the pipeline and more will follow. At some point in the near future, the Supreme Court is likely to review Roe and Casey. At the very least, the Supreme Court will allow states to enact more onerous restrictions. In the worst case, the court will reverse Roe and Casey altogether, allowing states to recriminalize abortion. In either circumstance, it is likely that safe legal abortion will no longer be available across wide swaths of America. Then for the first time in over 45 years, a woman’s ability to make personal, private decisions about whether to have a child will depend on where she lives.
Many pro-choice Pennsylvanians are feeling helpless and discouraged. Rightfully so.
So what can you do to protect reproductive rights?
First and foremost, remember that elections matter, particularly state elections.
Gov. Wolf will veto the Pennsylvania Down syndrome law, but a pro-choice governor is essential to preserving women’s rights. Pennsylvania has a long history of flipping between parties every eight years. We need to ensure that a pro-choice governor is elected next time around.
The best way to prevent pernicious, antiabortion laws from being passed is to elect a pro-choice Pennsylvania legislature, controlled by pro-choice leadership, which together with a pro-choice governor, can block new efforts to restrict abortion and enact laws protective of women’s reproductive health decisions.
We’re closer than you might think. In the Pennsylvania Senate, voters flipped five seats from red to blue in the 2018 and 2019 elections. Democrats need only three more seats to ensure Democratic control (and thus pro-choice leadership), and it is possible to do so in 2020.
In 2018, 14 state House districts flipped from red to blue. With the Republicans picking up three seats, the Democrats saw a net gain of 11 seats. This means that the lower chamber needs a net gain of only nine representatives to give the Democrats, and pro-choice leadership, control. In the 2018 general election, there were 16 state House seats that were won by fewer than 1,500 votes and numerous races that were completely uncontested. Hard work can make a huge difference.
Many of the newly elected members of the Pennsylvania General Assembly were women from suburban counties around Philadelphia and Pittsburgh who stood up to challenge the Pennsylvania Down syndrome law. In typical fashion, the Republican-controlled House refused to even let them speak. But hopefully, the days of women remaining barefoot, pregnant, and silent in the face of losing their rights are over.
And of course, judicial elections, particularly for justices of the Pennsylvania Supreme Court, are key. The Pennsylvania Supreme Court has the opportunity to interpret our state constitution expansively so as to extend greater protection to reproductive health decisions than available under the federal Constitution. Any such ruling would be a powerful check on legislative efforts to implement new restrictions. The Kansas Supreme Court did this recently, finding a ban on the most commonly used second-trimester abortion procedure violated that state’s constitution. A pro-choice majority in the Pennsylvania Supreme Court could do the same.
Although we are deeply saddened by the likely loss of women’s rights nationally, we cannot let our sadness lead to apathy or inaction. We owe it to the women of Pennsylvania to get busy changing the faces of those state politicians bent on undermining women’s freedoms.
Kathryn Kolbert and Linda Wharton were cocounsels in Planned Parenthood v. Casey, the 1992 Supreme Court case that is often credited with saving Roe v. Wade.