Monday, June 27, 2022

What Exactly is a Post-Roe America and North Carolina?

By Susan L. Roberts

Dobbs v. Jackson Women’s Health is indeed a landmark victory for the pro-life movement. The leaked draft unveiled by Politico on May 2 all but guaranteed a body blow to Roe.  The formal opinion differed from the leaked draft opinion only minimally with the addition of the syllabus and Alito’s comments on the concurring and dissenting opinions. What is being parsed are the concurring and dissenting opinions, especially that of Justice Clarence Thomas. It goes without saying the implications and impact of the ruling overturning Roe are as varied as they are dramatic, and no single analysis can capture the fluid and fierce nature of situation of a post-Roe America. 

Taking a step back from the close reading of the decision itself, let’s briefly look back at how we got here, what the national impact may be going forward, and what the impact may be for North Carolina.   As I wrote in May 2021, this “perfect storm” for the anti-abortion cause has been the result of a both a slow and strategically incremental approach as well a more radical course of action dedicated to the single cause of overturning Roe

The Nature of Abortion Politics in General

Followers of abortion politics in America know that judicial rulings have proceeded in a rather accordion fashion. The Dobbs decision is a dramatic exception. Past decisions seem to restructure abortion access only to be followed by limited abortion rights. 

Recently, for example, state legislatures passed a variety of regulations known as TRAP (Targeted Regulation Against Providers) laws. Instead of dealing with abortion procedures, these laws are designed to create obstacles to abortion access.  TRAP laws make abortion less available on a variety of factors such as requiring clinic doctors to have admitting privileges to local hospitals, mandating the size of clinic hallways, and forcing clinic facilities to meet requirements for an ambulatory surgical facility. 

Details aside, both Whole Women’s Health v. Hellerstedt (2016) and June Medical Services v. Russo (2020) dealt with TRAP laws. For example, in June, the Court's Medical Services decision ruled that a Louisiana law requiring physicians performing abortion have admitting privileges at local hospitals was unconstitutional because it placed an undue burden on women. Regardless of this Dobbs ruling, TRAP laws as well as an innumerable number of restrictions will continue to emerge in states to further test the potential scenarios regardless access to abortion. 

The long line of Court decisions on abortion offer proof that Roe was never sacrosanct. Recently confirmed Supreme Court Justices Gorsuch, Kavanaugh and Coney Barrett declined to view Roe as a “superprecedent,” a scholarly term used to describe cases in which no one calls for their reversal.  Justice Coney Barrett explicitly defined a superprecedent as “a precedent that is so well established that it would be unthinkable that it would ever be overturned,” citing cases such as Marbury v. Madison and Brown v. the Board of Education. For Justice Barrett, Roe had long been challenged and did not fit into that category. 

America's Public Opinion on Abortion

With some fluctuations, public opinion on abortion has remained relatively stable, and is best understood in terms of a continuum. At either end are Americans who feel abortion should be legal in all cases and Americans who feel that abortion should be illegal in all cases. The latest Pew Research Center survey on abortion attitudes reveals that only eight percent of those surveyed feel abortion should be illegal in all cases, and nineteen feel it should be legal in all cases. Sixty-one percent of those surveyed felt abortion should be legal in most circumstances. 

The survey was conducted before the leaked draft but after the Texas Heartbeat Act. A recent Gallup Poll on overturning Roe is just as significant.  A more nuanced survey conducted on June 2, 2022, Gallup found fifty-eight percent of Republicans, thirty-four percent of Independents, and fifteen percent of Democrats wanted Roe overturned. These numbers speak to the deep partisan divide on access to abortion.

Impact on Abortion Activism

As they have for almost fifty years, abortion activists will continue to work to enshrine or to eviscerate a woman’s access to abortion. In the words of the famous Yogi Berra, “It ain’t over til it over,” and intense fighting over abortion access will continue at the national, state, and local levels. The speed and the zeal with which pro-life activists and state legislatures have proposed and in some cases, enacted, is unprecedented, and Dobbs will result in vigorous and immediate attempts to both protect or to ban access to abortion. 

In anticipation of this ruling , most Americans became aware of “trigger laws.”  In the wake of Dobbs, a wave of “trigger laws” have already or will soon go into effect. Absent Roe, abortion access will revert to these states to preempt passage of any protections to abortion access. 

According to the Guttmacher Institute, thirteen states have trigger laws that would outright ban all  abortion access or  leave very little protection left. Even in these states with trigger laws, anti-abortion groups are designing and pushing legislation to insure a ban abortion. Americans United for Life, as I described in the Washington Post, is “the most significant anti-abortion group you’ve never heard of,” will continue to circulate pieces of model legislation covering every avenue they deem life-affirming such as an Abortion Reporting Act, a Prenatal Nondiscrimination Act, a Suicide by Physician Act, a Human Cloning Prohibition Act, and a Embryo Adoption Act to name just a few.

The Dobbs decision aside, fierce abortion politics will persist on all fronts and in varied ways. Neither the pro-choice movement nor the pro-life movement have been monolithic in arguing about abortion access. More so than pro-choice advocacy, the pro-life movement has varied greatly in their tactics and its emphases. Some groups have advocated against abortion in Biblical terms. One of the least publicized but perhaps most effective pro-life organization in the country, Americans United for Life (AUL), have couched their opposition in legal terms and crafted pieces of model legislation for consideration by state legislatures. 

Another group, Personhood Alliance has framed their argument by claiming life begins at fertilization and views  “unborn human beings as persons deserving of equal protection and due process under the law.”  The National Right to Life cites founding documents such as the Declaration of Independence as one source for its mission. Faith2Action considers itself the “birthplace of heartbeat legislation” and introduced its first piece of heartbeat in Ohio in 2011. 

Pro-life organizations have strongly debated the use of strategic incrementalism based on legislation versus the exclusive goal of overturning Roe. In comparison, pro-choice organizations tend to have similar frames focused on abortion access with little nuanced differences among National Reproductive Rights Action League (NARAL), Planned Parenthood Federation, Center for Reproductive Rights, the National Organization for Women, and Sister Song –  the Women of Color Reproductive Justice Collective.

With this sweeping ruling from Dobbs, any fragmentation of groups remains relevant. Whether the concern is heartbeat legislation, “personhood,” or reproductive justice, there will be ongoing and accelerating efforts to increase or decrease the inventory of restrictions against access to abortion. In leaving the purview of abortion access to the states, the Dobbs decision does make the fragmentation among the states perhaps a relevant factor for women and activists understanding access to abortion. The arenas may have changed but the fervor on both sides won’t wane. 

For one, pro-life groups will continue to target Planned Parenthood whether it be in terms of funding or facilities. Plans to defund Planned Parenthood are not new. Most recently, Marco Rubio and Joni Ernst introduced “Protecting Funding for Women’s Health Care Act” in  April of 2021 aimed at eliminating any federal funding of Planned Parenthood Federation of America.   

Americans United for Life (AUL) has labelled Planned Parenthood a “dirty and dangerous industry” and an “abortion cartel.” In their investigative reporting, AUL has continued to update its publication “Unsafe” where they have doggedly tracked reports of regulation violations brought against every clinic in every state. They inventory reports from state licensing agencies and state health regulators for what they categorize as faulty buildings, unqualified staff, expired medications and “lack of respect for patients” to name but a few.  In AUL’s Unsafe tracker identifies “184 abortion facilities in 32 states and the District of Columbia cited for failure to ensure a safe and sanitary environment for patients.” These included handwashing protocols, improper monitoring of autoclaves, and equipment cleanliness among others. Drawing on N.C Division of Health Service Regulation, Statement of Deficiencies, AUL identified ten clinics in North Carolina which fell into some of these categories. Such monitoring will undoubtedly continue.

Conversely, Dobbs will not stop some states to work to preserve and even expand access to abortion. As reported by the Kaiser Family Foundation, at least sixteen states are moving to liberalize abortion access. Citing a “growing momentum,” states such as Vermont are working in various ways to protect reproductive rights in their state constitutions. Maryland has passed a law on insurance coverage of abortion procedures. Oregon has passed a Reproductive Health Equity Fund Act to work with a grassroots organization to increase funding for persons seeking abortions. California, Maryland, and Connecticut are working to increase the pool of doctors trained to perform abortions. These are but a few instances of state activism to shore up abortion access without Roe protection.

Impact on National Politics

The ultimate impact on the nation is uncalculable. Any assessment at this point is electoral, participatory, and institutional.

First, the leading question is to what degree abortion can be a galvanizing force at the ballot box in November. Today that seems indisputable. Political scientists, however, have long sought to understand the single issue voter. A Gallup poll in 2020 revealed that twenty four percent of Americans would not vote for a candidate unless the candidate shared their views on abortion, a number higher in recent years.  Writing after the leaked Dobbs opinion, Sarah Isgur wrote in Politico that abortion might not be the wedge issue many expected it to be, adding that “ almost a year since the Texas law went into effect, politically speaking, abortion was the dog that didn’t bite.” 

As of this writing, that analysis has changed radically. Pro-choice activists are protesting across the country. Democrats are determined to make the overturning of Roe and its fallout to be central to the midterms. Additionally, the Democrats seem to be messaging better than usual on this question as seen in comments by Biden and Nancy Pelosi that  “Roe is on the ballot.”

Second, it remains unclear if the current intensity of pro-choice activism can last until November. Indeed, the leaked Dobbs opinion catapulted access to abortion to the top of the national agenda, but the issue agenda is crowded. Gun violence jumped to the top of the issue agenda because of the focusing events of Uvalde and Buffalo, especially as these are placed in the long list of mass shootings.  

On the other hand, we know all too well how the debate over guns in this country has lost its sense of immediacy, and despite the recent passage of the Bipartisan Safer Communities Act, gun restrictions remain disputed. Further crowding the issue agenda is the pervasive concern with the economy and inflation, concern made palpable in terms of the prices of housing, gas, and food.  If the reaction the Dobbs formal decision holds, however, access to abortion will remain at the top of the agenda. A snapshot today of the energies on both sides foreshadows more dramatic mobilization than persuasion.

Most Americans are not extremist in terms of allowing exceptions, but polling can be tricky. Younger voters, those between 18-29, are the most passionate about social justice and issues such as reproductive rights, but younger voters tend to be less likely to turnout than older cohorts. At this this point, it remains difficult to project the degree to which pro-choice supporters can sufficiently organize, mobilize, and most importantly, vote. Given the dynamics of midterm elections, the degree of partisan antipathy, and the fact that abortion is an issue that divides along party lines, views on access to abortion may or may not be the deciding factor in 2022.

While midterm elections usually follow a pattern of decreased enthusiasm, decreased turnout and losses by the party of the sitting president, the 2018 midterm proved to be an exception. If pro-choice activists turn the protests around the country from cathartic to catalytic, and if these activists can turn the anti-Trump motivator of 2018 into anti-Dobbs fervor, the midterms of 2022 could mute the typical midterm dynamics.

Third, one must not forget the institutional context of the Court’s ruling. The degree to which the Court operates more from politics than law is not a new question, but recent surveys reveal this is a concern for American public. A Quinnipiac Poll revealed that sixty-three percent of respondents saw the Court as politically motivated while thirty-two percent viewed them as guided by the law.  In 2019 Chief Justice Roberts himself acknowledged perceptions of Court as too political but attributed that to the polarization of the country. Along the same lines, and perhaps more critical is the Gallup Poll released the day before the Supreme Court announced Dobbs showing only twenty-five percent of Americans had confidence in the Court, a number five points lower than the prior low of thirty percent in 2014.  

Fourth, the partisan composition of state legislatures is integral to projecting access to abortion activity. As of June 26, the numbers of trifectas in the country favor the Republicans. A trifecta is the term used to classify states where one party controls the governorship, the state House, and the state Senate. At present, there are thirty-seven trifectas with Republicans having twenty-three as opposed to fourteen by the Democrats. Given the indisputable association of Republicans with pro-life sentiments/anti-abortion and Democrats as pro-choice, the future of abortion rights seems skewed towards the Republicans.

The Future of Abortion Access in North Carolina's Politics

Given the Dobbs ruling, access to abortion in North Carolina will be relatively unchanged in the short term. While highly unlikely, Senate leader Phil Berger and House Speaker Tom Moore requested Attorney General Josh Stein bring back the 20-week abortion ban deemed unconstitutional in 2019. Immediately following the Dobbs decision, Attorney General Stein released a statement addressed to the women of North Carolina declaring “you still have a legal right to an abortion in our state.” Speaker Moore has acknowledged there would be no attempts to pass new legislation restricting abortion until the November election, stating “we have a governor who I know would veto any legislation and we don’t have a supermajority.” Given this, what might be the future of abortion might be in North Carolina?

First, in North Carolina a 3/5 majority in either the House or the Senate creates a “veto-proof majority.” If the Republicans gain two seats in the Senate or three seats in the House, they can override any veto by Governor Cooper. Midterm elections usually result in losses of the party of the sitting President. Midterms are also seen as referendums on presidential approval and the state of the economy. Given the current climate, it is very likely Republicans will pick up enough seats to achieve a veto-proof majority. In a statement from the NCGOP followed the leaked opinion, the party stressed in no uncertain terms the need to deliver a pro-life majority to the General Assembly in November 2022.

Second, a WRAL poll found that 45 percent of respondents felt Roe should not be reversed as opposed to 30 percent who thought it should be reversed. Roughly 25 percent responded they were unsure. Similarly, a Meredith College poll found that almost fifty three percent of North Carolinians favored preserving or increasingly access to abortion. These snapshots of public opinion are no guarantee that this sentiment will be reflected in upcoming legislation in the NC General Assembly.

Third, North Carolina is currently considered a so-called “safe state” because there are no trigger laws on the book. Any “enclave” or “safe state” status could be short-lived given the high likelihood of a Republican gains in both houses. According to the latest figures available were from the Kaiser Family Foundation (2019), around eighteen percent of abortions in 2019 were from individuals from outside of North Carolina. These numbers are expected to increase. As reported in The Assembly, abortions in North Carolina are likely to increase from anywhere between 17,000 to 70,000 as North Carolina becomes “the state of last resort.”

Abortion clinics are few in North Carolina, with only nine out of one hundred counties having clinics that provide abortion services. At present, there are only fourteen clinics in the state. Given the fact that approximately roughly 30,000 abortions were procured in 2020, including 5,000 from out of state women, demand for abortion may easily outpace availability.

The climate for abortion access has not been favorable. North Carolina passed a law on May 23, 1973, just months after the Roe decision, prohibiting abortion after 20 weeks. This has not been enforced because a lower court ruled it unconstitutional under the Roe precedent, but it is unlikely to be enforced prior to the midterm elections.

The latest numbers on abortions procured come from the N.C. Department of Health and Human Services statistics of 2020. As detailed in North Carolina Health News, there were 25,058 abortions procured in 2020. More abortions were performed by a combination of pills than in clinic surgical procedures, 59 percent to 37 percent. 

Fourth, the leader in pro-life model legislation, the Americans United for Life (AUL), will continue to advocate for “life-affirming” legislation across a wide spectrum of issues. AUL ranks North Carolina as twenty eighth in the country for its pro-life legislation. The organization suggests twenty-one recommendations  to further N.C. in their goals found in their major compilation, “Defending Life.” Such recommendations include their model legislation such as Drug Induced Abortion Information and Reporting Act, Unborn Infants Dignity Act, Born-Alive Infant Protection,  Human Cloning Prohibition Act. And the Suicide by Physician Ban Act. These pieces of model legislation will continue to be distributed to like-minded legislators in North Carolina and all other states.

Fifth, legislative proposals to curb access to abortion will visible and highly contentious. Bills such as those described above will likely be visible and contested. Attempts to cloak and curb abortion access would no longer be necessary. The case in point was what has come to known as the “Motorcycle-Vagina Bill of 2013” where TRAP laws were attached to a bill for helmets and motorcycle safety. 

Finally, North Carolina has a high-profile U.S. Senate race this fall. As one might expect, Representative Ted Budd (Republican) and former Chief Justice of the NC Supreme Court Cheri Beasley (Democrat) couldn’t be further apart on the issue of abortion. Budd opposes any access to abortion and frames his argument in religious and personhood terms, citing the constitutional rights of the unborn. In addition, he has stated he is “100% pro-life no matter how you measure it” and supports abortion restriction “all the way back to the point of conception.” Budd has been endorsed by the NC Values Coalition

On the other side of the issue, Beasley supports abortion access, framing it as a constitutional right. In a press conference, Beasley along with several others stated her vigorous support of abortion rights and reproductive freedom. Additionally she supports the Women’s Health Protection Act, congressional legislation to codify Roe. Beasley has received the endorsement from EMILY’s List, a high-profile PAC with generous contributions to Democratic pro-choice women, as well as the Planned Parenthood Action Fund and the National Abortion Rights Action League (NARAL). Given the cultural schisms in the country, the question of access to abortion will undoubtedly enter the political calculus of both candidates.

Conclusion: The Abortion Fight Is Far From Over

While abortion access has been radically transformed with the Dobbs decision, the landscape of abortion remains a patchwork quilt with different states having very different laws on abortion access. Anti-abortion activists welcomed the Dobbs decision as an unparalleled victory, but pro-choice activism will remain energized. Candidates will be pressed on the question of abortion. It bears repeating that although the Dobbs decision effectively guts Roe, the fight over abortion access is far, far from over. 


Dr. Susan L. Roberts is a professor of political science at Davidson College. She tweets at @profsuroberts.