The leaked draft of a majority Supreme Court decision overturning Roe v. Wade caught most of the nation by surprise, but anti-abortion legislation at the state level has been growing steadily over the past decade.
Since 2009, nearly 400 abortion-related laws were passed and 85% of them were aimed at restricting, regulating or opposing access to the practice, according to a Bloomberg News analysis using data from LegiScan, a legislative tracking service. The bills included everything from sweeping abortion policy shortening the amount of time to get the procedure to more symbolic resolutions, like memorials to fetal remains.
Many of them weren’t enforceable while Roe was the law of the land and were designed to signal anti-abortion leanings or directly challenge the Supreme Court ruling with the hopes of getting it overturned. As the Supreme Court shifted right, that emboldened state legislators who calculated the high court would be more favorable to unconstitutional laws. Supporters of abortion rights, meanwhile, are playing catch-up.
“Anti-abortion politicians’ ultimate goal was to test the limits of the U.S. Supreme Court and see the day where we currently stand: the day when the Supreme Court would overturn Roe,” said Jennifer Driver, senior director of reproductive rights at State Innovation Exchange, an advocacy group that works with state legislators on advancing reproductive healthcare access.
The rampant pace in anti-abortion legislation picked up in the wake of the 2010 midterm elections, in the middle of President Barack Obama’s first term, which ushered in Tea Party politicians who were increasingly conservative, according to the Guttmacher Institute, a research group that supports abortion rights. The number of restrictive laws has grown over time. A high-water mark of 42 bills adopted in 2011 was surpassed in 2019 and 2021, when 50 or more were approved.
In the past decade, 11 states have attempted to ban abortion at six weeks. Until recently, they never went into effect. But last year, SB8 in Texas managed to get through a legal loophole by removing state enforcement. It includes a vigilante component that deputizes private citizens to bring civil lawsuits against anyone they suspect or know broke the law. In May, the most restrictive abortion law in the country took effect in Oklahoma. It bans abortions at conception, with few exceptions.
The sheer number of restrictions states have passed over the years is even higher than Bloomberg’s analysis, since some bills contain multiple regulations. For example, Kentucky’s HB3, enacted this year, banned abortions after 15 weeks, prevents the use of telehealth for medication abortions and requires all people who have surgical abortions to file a birth-death certificate.
The Supreme Court makeup shifted increasingly to the right with the confirmations of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, in 2017, 2018 and 2020, respectively. The Supreme Court is expected to make a decision on Roe at the end of June.
“They had the legal wind at their back and now there’s no stopping them,” said Elizabeth Nash, a state policy analyst with the Guttmacher Institute. Nearly half of the 1,380 individual abortion restrictions tallied by the institute since 1973 were passed in the past dozen years.
State-level action to expand abortion access has moved at a slower clip and smaller volume. In all, there were fewer than 60 bills or resolutions passed since 2009 in support of abortion access, the analysis shows. Those include prohibiting discrimination based on one’s reproductive health decisions and protecting the privacy of abortion clinic workers. Half of those pro-abortion bills were passed in just four states: California, with 16, Hawaii, New York and Delaware, each with four or five. That delay can be attributed to the fact that some Democrat politicians have been relying on the courts to backstop political efforts against abortion access.
Action from so-called haven states has ramped up ahead of the expected Supreme Court ruling. New Jersey and Colorado in recent months enacted laws that guarantee the right to abortion. Maryland and California, which had already codified abortion access, this year put in place laws aimed at removing out-of-pocket expenses for the procedure.
Those states are “scrambling to protect reproductive choice, some to quickly enshrine the right to an abortion in state constitutions, and others taking measures to ensure sanctuary for those who cross state lines for care,” said Noreen Farrell, executive director at Equal Rights Advocates, a gender justice advocacy group.