Next frontier for the antiabortion movement: A nationwide ban

WASHINGTON - Leading antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington.

The effort, activists say, is designed to bring a fight that has been playing out largely in the courts and state legislatures to the national political stage - rallying conservatives around the issue in the midterms and pressuring potential 2024 GOP presidential candidates to take a stand.

The discussions reflect what activists describe as an emerging consensus in some corners of the antiabortion movement to push for hard-line measures that will truly end a practice they see as murder while rejecting any proposals seen as half-measures.

Activists say their confidence stems from progress on two fronts: At the Supreme Court, a conservative majority appears ready to overturn the Roe v. Wade decision that has protected abortion rights for nearly 50 years - an outcome that was previewed late Monday when Politico published a draft opinion saying it was time to strike the precedent and “return the issue of abortion to the people’s elected representatives.” And activists argue that in Texas, Republicans have paid no apparent political price for banning abortion after cardiac activity is detected, around six weeks of pregnancy.

While a number of states have recently approved laws to ban abortion after 15 weeks of pregnancy - the limit established in the Mississippi legislation at the heart of the case pending before the high court - some activists and Republican lawmakers now say those laws are not ambitious enough for the next phase of the antiabortion movement. Instead, they now see the six-week limit - which they call “heartbeat” legislation - as the preferred strategy because it would prevent far more abortions.

“This is a whole new ballgame,” Kristan Hawkins, president of Students for Life Action, one of the country’s biggest antiabortion groups, said in an interview. “The 50 years of standing at the Supreme Court’s door waiting for something to happen is over.”

A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford of Oklahoma, who was in attendance and said he would support the legislation. Sen. Joni Ernst, R-Iowa, will introduce the legislation in the Senate, according to an antiabortion advocate with knowledge of the discussions who spoke on the condition of anonymity to discuss internal strategy. Ernst did not respond to a request for comment.

One top advocate, Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, has spoken privately with 10 possible Republican presidential contenders, including former president Donald Trump, to talk through national antiabortion strategy. Most of them, she said in an interview, assured her they would be supportive of a national ban and would be eager to make that policy a centerpiece of a presidential campaign.

And Students for Life Action, along with nine other prominent antiabortion groups, plans to send a letter to every Republican member of Congress on Monday pushing them to embrace a “heartbeat bill.” The letter, which the group shared with The Washington Post, argues that a national 15-week ban would not go far enough.

“If we are not focusing on limiting early abortions, we are not really addressing the violence of abortion at all,” Hawkins writes.

[If Roe v. Wade is overturned, abortion access in Alaska would remain. Opponents see a constitutional convention as a pathway to end it.]

A nationwide abortion ban would be extraordinarily difficult to pass, particularly given the need for 60 votes in the Senate to overcome a filibuster under current rules. Such a measure would encounter resistance from nearly all Democrats in addition to a handful of Republicans, who might raise questions about its constitutionality. The Senate is split 50-50, but with a handful of competitive races this year, neither party is expected to attain a filibuster-proof majority.

A strict national ban is also likely to be impossible without an antiabortion Republican president willing to sign it.

Moreover, picking such a fight could ignite liberal activists who would be energized to push back against the prospect of abortion being banned not just in red-state America but Democratic bastions from California to New York. The early years of the Trump administration prompted huge protests, starting with the first Women’s March the day after Trump’s inauguration in 2017 - though it remains unclear whether a rollback of Roe would reignite that energy.

The possibility of a nationwide ban is “terrifying,” said Kelley Robinson, executive director of Planned Parenthood Action Fund, adding that the proposal would be a major motivator for Democrats in the midterm elections.

“By them saying out loud that their goal is to push a nationwide abortion ban, it makes it clear that we have to elect more pro-reproductive health champions on the national level and in the states,” she said.

The discussions in Washington show how dramatically the political landscape around abortion has shifted in just a few years.

Washington Post-ABC News polls show that about 6 in 10 Americans oppose overturning Roe, a number that has hardly changed in the past two decades.

But Trump reshaped the Supreme Court during his time in office, appointing three justices to create a 6-to-3 conservative majority. While considering Mississippi’s 15-week abortion ban during oral arguments in December, justices appeared open to overturning Roe. The court has also passed up three opportunities to overturn the Texas law, a clear violation of long-standing precedent.

Republican lawmakers in state houses across the country have been racing to restrict the procedure ahead of the Supreme Court decision. Meanwhile, Democratic legislators have been laying the groundwork to turn their states into abortion “sanctuaries,” building clinics close to red-state borders and passing laws that enshrine abortion rights.

Now, on the brink of a potential Supreme Court victory that has been a decades-long goal for the antiabortion movement, activists see federal legislation as a new way to energize core conservative voters over the next two national election cycles.

Some activists say the thinking has shifted even in the past few months, largely because of the success of the Texas law, with growing support in the movement for the six-week ban. Approximately 93 percent of abortions take place in the first 13 weeks of pregnancy, according to the Centers for Disease Control and Prevention - meaning 15-week bans target a small fraction of abortions.

“Texas catapulted that bill into the public conversation and the public eye,” Dannenfelser said.

Now that people across the country have grown comfortable with that law, she added, it can become “consensus legislation.”

Robinson, of Planned Parenthood, disagrees with that assessment, arguing that the Texas law has motivated people across the country to understand the high stakes of the abortion debate. She cited the crowds that have gathered recently to protest antiabortion bills in Kentucky, Nebraska and Florida.

“People are awakening to [the antiabortion] strategy, and I think we will see this reaction continue to grow and peak after the Supreme Court decision,” Robinson said.

Speaking to a group of students and advocates at the University of Virginia in late April, Hawkins also emphasized the importance of the Texas law in changing public opinion on restrictive abortion bans. On a recent trip to Texas, she told the crowd, she saw women on cellphones and in business suits.

“Nearly 65% of all abortions have been illegal in Texas since September 1st, and somehow women are still free to be women. It’s like shocking, I know,” she said.

Studies show that a majority of Texas women seeking abortions after six weeks have been able to access abortion pills illegally online or travel to abortion clinics out of state, an option that would not be possible under a national ban.

If the Supreme Court rolls back Roe, the states will spring into action first, Dannenfelser said. In recent months, she said, she has spoken to at least 20 governors about their post-decision plans, helping them understand which laws could take effect in their state and what they would need to do to activate the legislation. For example, the 13 “trigger bans” across the country, which ban abortion outright as soon as Roe is overturned, all work a little differently, she said. Other states have various antiabortion laws that have been blocked by the courts and could come back to life.

“We need to make sure there is perfect clarity on the status of laws in their state,” Dannenfelser said.

After the states have taken the lead, she said, momentum will start to build in Washington.

Republicans will probably mobilize around certain bills that have already been introduced, including restrictions on minors traveling across state lines for abortions, said Rep. Mike Johnson, R-La., who has proposed such a bill.

Several abortion bans have already been introduced in Congress. A six-week abortion ban has been introduced in the House, by Rep. Mike Kelly, R-Pa., and the Life at Conception Act, which would recognize a fetus as a person with equal protections under the 14th Amendment of the U.S. Constitution, has been introduced in both chambers. Nineteen Republican senators and well over 100 Republicans in the House have co-sponsored the measure, signaling that many would like to see a total ban on abortion.

While none of those proposals have gone anywhere in the past, activists say the Supreme Court decision could give them more prominence in the public debate.

Lankford said he would like to see a national “cap” for abortions, establishing a limit on when abortions can be performed, in addition to various bans on the state level.

On the federal level, he said, there will be “a dialogue to try to figure out, what is the right moment?”

If the high court rules with the antiabortion movement, Republican lawmakers would be presented with various types of abortion bans, Dannenfelser said. The two leading proposals, she added, would probably be a 15-week ban and a six-week ban.

But some activists and lawmakers say the momentum has clearly shifted toward tighter restrictions.

Kelly, who introduced the six-week ban in the House, said he doesn’t understand why antiabortion Republicans would settle for a 15-week ban if Roe is overturned.

“I’m not willing to compromise that,” he said. “I think it’s morally unacceptable.”

In her letter to Republican members of Congress, Hawkins describes Mississippi’s 15-week ban as a tool that “served [its] purpose in leading us to where we are today.”

“But at this pivotal moment in which almost anything is possible, it’s crucial to establish the difference between a previous tactic (such as limiting abortion at 15 weeks) and our goals or current strategies,” the letter says.

Susan B. Anthony List fully supports both a national six-week ban and a 15-week ban, said Dannenfelser, who has been working to gather co-sponsors for both pieces of legislation.

The midterms will be a test to see how voters respond to each type of ban, she said. Her organization is tracking nine battleground states and many more House districts, she said, where candidates will voice support for varying degrees of abortion restrictions. After the midterms, she said, she and her staff will assess which messaging proved most successful.

At least one possible Republican presidential candidate, former New Jersey governor Chris Christie, said he opposes any kind of national ban on abortion.

“The states should be making those decisions, and the federal government should stay out of it,” he said.

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The Washington Post’s Scott Clement contributed to this report.