Red State Pro-Life Reforms Could Spark Supreme Court Standoff

GOP lawmakers challenge Biden's pro-abortion policies

Pro-life and pro-choice activists in 2018 / Getty Images
April 27, 2021

Republican-controlled state legislatures are pushing back against the Biden administration's attempt to expand abortion access, a standoff that could end up before the Supreme Court.

Montana governor Greg Gianforte (R.) and Oklahoma governor Kevin Stitt (R.) each signed three bills into law Monday, making their states the latest in a line of Republican-controlled states to push back as the White House has loosened restrictions on at-home chemical abortions and restored taxpayer funding for Planned Parenthood under the Title X program.

The most noteworthy piece of legislation signed into law Monday was a fetal heartbeat bill in Oklahoma. The legislation threatens doctors who perform abortions after a fetal heartbeat is detected with jail time, except when the mother's health is in danger. Montana passed a less expansive ban on abortions after 20 weeks. Republican legislators who voted for the Montana bill said the law will prevent babies capable of feeling pain from being aborted.

"With pro-life bills spreading like wildfire across the nation, it’s clear that Americans want their legislators to continue to pass life-saving laws that defy the pro-abortion extremism on display in Washington," said Sue Liebel, state policy director for the pro-life Susan B. Anthony List.

In April a flurry of other states have similarly moved to chip away at access to abortion in a move that both pro-life and pro-choice advocates say is pushing the Supreme Court to revisit abortion rights. The Florida House of Representatives passed a bill to ban abortions because of fetal disability diagnoses such as Down syndrome. The move came days after the Arizona state legislature passed a sweeping bill mandating care for aborted fetuses and prohibiting abortions on the basis of fetal disability diagnoses, as well as banning the mailing of abortion drugs and spending taxpayer funds on abortion-providing organizations.

As red states enact these laws, the Supreme Court remains silent on abortion. The High Court dodged an opportunity to review a Tennessee law instituting a 48-hour waiting period for abortions after an appeals court narrowly upheld an Ohio law banning abortions of babies diagnosed with Down syndrome by a 9-7 margin. But the appeals court overturned a three-judge panel that had ruled against the law, making further judicial review likely.

Additionally, blue state attorneys general and pro-abortion groups have pledged to push courts to strike down pro-life laws. New York attorney general Letitia James led a coalition of 20 Democratic state attorneys general in challenging the Tennessee waiting period law. "Time and again, various states have passed laws that seek to limit reproductive choices and control women’s bodies," James said. "Our coalition will continue to fight to protect women’s bodies, their freedoms, and their choices."

Caitlin Borgmann, executive director of the American Civil Liberties Union of Montana, told the Associated Press that the laws will be challenged as long as Republican state legislatures push them.

"Republicans have plowed ahead despite clear warning that the bills are unconstitutional and will be challenged in court," she said.