In June 2016 the Supreme Court ruled on the biggest abortion case since Roe v. Wade, Whole Woman's Health v. Hellerstedt. In ruling that regulations for abortion clinics must be rooted in medical necessity and scientific evidence, the court not only struck down two egregious abortion restrictions in Texas; it struck a major blow against the entire anti-choice movement.
For a decade now conservative activists have passed a series of abortion restrictions under the guise of protecting "women's health," even though none of these laws do any such thing. The Supreme Court decision now makes it much harder for states to defend laws that don't do anything to improve health outcomes but seem to function only to make abortion services more expensive and difficult.
It's good news for pro-choice activists, but there is a wrinkle: No one is quite sure exactly what the Whole Woman's decision means for the dozens of other laws, across dozens of other states, that restrict abortion access using disingenuous claims about women's health. The Supreme Court's decision knocked down the Texas laws, but made no specific mention of other states or restrictions such as waiting periods, mandatory ultrasounds, or requirements for doctors to read scripts with scary misinformation to women seeking abortion. Legal experts believe many of those laws would fall under a legal challenge, but so far that hasn't been tested.
“The Supreme Court decision doesn’t automatically strike all the laws across the country" that restrict abortion access by other means, said Sarah Gillooly, policy director of the American Civil Liberties Union in North Carolina, over the phone. "So in order for the decision in Whole Woman’s Health v. Hellerstedt to be real and enacted across the country, it’s going to require a two-part approach." In practice, she said, that means "litigating every individual law that is in conflict with the Whole Woman’s Health decision, or state legislatures repealing those laws and codifying that decision."
Added Gillooly: "We’ve decided to pursue a Whole Woman’s Health Act in North Carolina to repeal a whole list of onerous abortions restrictions." The Whole Woman's Health Act is aimed at codifying the Supreme Court decision it's named after and would simply ban any regulations of abortion "that burden abortion access and do not provide legitimate health benefits."
If it becomes law, the bill is expected to void the many restrictions on abortion access that have passed over the years. It would save a lot of time and hassle for activists that would otherwise go into challenging each restriction separately.
The idea is taking off. Besides North Carolina, four other states — Texas, Missouri, Georgia and Virginia — have seen Democratic legislators, egged on by activists, introduce similar bills that codify the language of Whole Woman's Health v. Hellerstedt.
"We are seeing the Whole Woman’s Health Acts in particular, being introduced in some states deeply hostile to reproductive rights, where advocates are using the bill to expose the very real harms caused by abortion restrictions in their state," said Amanda Allen, senior state legislative counsel for the Center for Reproductive Rights, in an email.
"Expose" is key word here, as none of the activists I spoke with felt there was much chance of passing these pro-choice bills in state legislatures, as long as they are controlled by Republicans. But putting these bills out there, they argue, helps spur conversation and educate voters about the anti-woman agenda driving anti-abortion bills.
"We know that it’s important, in this moment, that we as advocates that support the right to abortion go on the offensive," said Gillooly. "Especially with a climate towards reproductive health and abortion that is so incredibly hostile, we need to define our values and define what we need and what we want under the law.”
“One thing about our work in Georgia since 2015 is that we have continued to keep proactive legislation as a part of our legislative agenda," explained Kwajelyn Jackson of the Feminist Women's Health Center in Georgia in a phone conversation. "We think that is a really important part of our policy work. We weren’t just going to wait on restrictive legislation or attacks on reproductive justice to introduce” new laws that protect abortion access.
Introducing the Whole Women's Health Act in Georgia, Jackson continued, created an opportunity to "have conversations on the ground with folks who possibly, up to this point, may not have been as activated in this fight or not as aware of what is happening on the state level."
Going on the offensive can also help erode conservative power, argued Tarina Keene, the executive director of NARAL Pro-Choice Virginia, over the phone. Conservatives politicians know that anti-choice views are unpopular, Keene said, which is why "they do their best to cover up" what they're actually doing to women's health care access.
Proactive legislation, Keene argued, creates opportunities for progressives to embarrass Republican politicians and highlight the extremism of their views. She pointed to another Virginia bill that NARAL backed that would make it easier for women to receive birth control in a timely manner. Earlier attempts to pass such a bill were met with aggressive Republican resistance, Keene said, but eventually, apparently realizing that opposing contraception is a bad look, the Republicans caved and the bill was passed into law.
Pro-choice activists are trying to do something similar with the Whole Woman's Health Act in Virginia. When it was introduced in that state by Democratic Delegate Jennifer Boysko, the chair of the House Courts of Justice Committee, Republican Delegate Dave Albo, refused to allow a hearing on the bill, much less a vote.
"As you know," Albo wrote in a letter justifying his decision to Boysko, "the Committee historically kills bills with liberal politics."
In reaction, pro-choice activists rallied outside the House Courts of Justice Committee, helping push the narrative that Republicans were too afraid of Boysko's bill to let it have a fair hearing.
It's that level of energy that pro-choice activists hope to tap into with Whole Woman's Act efforts across the country.
"We have seen an unprecedented outpouring of support and level of engagement since November," said Yvonne Gutierrez, the executive director of Planned Parenthood Texas Votes, by email. She also said there's been "tremendous momentum" since the Supreme Court decision and that activists are aware that "extreme Texas legislators . . . will do everything to continue to push measures that cut off access to reproductive health care."
Other activists I spoke with concurred, noting that progressives in their states are fired up by what feels like an onslaught of attacks on women's rights over the past few years — culminating, of course, in the election of Donald Trump — and they are eager to direct that energy towards something substantive.
Although Georgia remains a red state, Jackson said, "There is still a lot of power in progressive groups working on the grassroots level." Feminist organizers, she concluded, hope the Whole Women's Health Act in Georgia can provide such progressive activists "a vision of the future that looks better than the status quo.”