The Midterms Could Determine Abortion Access in These States

13 minute read

In Wisconsin, the Supreme Court’s decision last Friday to overturn Roe v. Wade had an almost instantaneous effect: as soon as the Justices issued their opinion, medical providers across the state immediately stopped providing abortions.

That’s because Wisconsin is one of several states that already had a law banning abortion on its books, leftover from before Roe established the right to abortion in 1973. In this case, the law dates back to 1849, the year after Wisconsin became a state. While the law has not been used in modern times and Wisconsin’s Democratic Attorney General Josh Kaul promised he wouldn’t enforce it, the Supreme Court decision meant that local prosecutors could suddenly choose to act on the law. So providers are treating abortion as effectively illegal until something happens to clarify the situation.

The state’s Democratic leaders are now scrambling to find that something.

On Tuesday, Kaul filed a lawsuit challenging the viability of the 173-year-old law, and Wisconsin Gov. Tony Evers, a Democrat, tells TIME he is “looking at every angle” to protect abortion rights in the state. But the politics are challenging. Republicans control Wisconsin’s State Senate and State Assembly, which limits Democrats’ ability to pass any legislation protecting abortion rights, and both Kaul and Evers are up for reelection this year—facing off against Republican opponents who have promised to uphold the 1849 law. With midterms fast approaching, these Wisconsin races are now squarely in the national spotlight, as the country watches to see whether the state will ban abortion.

Wisconsin is not alone. While about half of the states are expected to ban or tightly restrict abortion within months and 20 states and D.C. are moving to protect abortion access, a smaller group are in political limbo. In nine states, the legality of abortion is currently being contested. In at least six—Wisconsin, Michigan, Pennsylvania, Arizona, North Carolina, and Kansas—the outcome of the 2022 midterms could determine the future of abortion rights in the near future.

In most of these nine states, abortion has became a top campaign topic. Democrats are hoping to leverage the issue to energize their base and retain moderate, suburban swing voters, who have been key to their success in recent elections, while Republicans are taking a mixed approach. Some state GOP candidates are doubling down on their support for abortion bans with limited or no exceptions, while others have gone quiet on the controversial topic in the week since the June 24 ruling, focusing instead on the economy or on criticizing Democrats more broadly.

As the full effects of the Supreme Court’s ruling continue to unfold, these state-level races—for governor, attorneys general, state Supreme Court judges, legislative seats, and ballot initiatives—will determine the scope of access in key areas nationwide.

Governors and attorney general races

Wisconsin, Michigan and Pennsylvania offer perfect case studies. In all three states, Republicans control the state legislatures and Democrats control the governors’ mansion. All three current Democratic governors have vetoed anti-abortion legislation passed by Republican lawmakers in the past, and their presence in office is now the main obstacle to new anti-abortion legislation.

Wisconsin’s Gov. Evers is trying a range of tactics to stop his state’s abortion ban. He called a special legislative session earlier this month to repeal the 1849 law. When Republican lawmakers adjourned without taking action, Evers promised to offer clemency to doctors charged under the law, announced he would not appoint state prosecutors who agree to enforce the law, and says he is still considering further executive action.

“We’re going to do everything we can,” Evers tells TIME. “Thank goodness we have some states around us that can help us provide the services that are necessary, but that’s not the answer. That’s a stop gap.”

Evers also supports Wisconsin attorney general Kaul’s recent lawsuit, which argues that the 1849 ban should be found unenforceable because Wisconsin has passed more recent abortion laws that supersede it, and because the old law had already fallen into disuse even before Roe v. Wade. The lawsuit faces a difficult battle in the courts, as it will likely work its way to the state Supreme Court, where conservatives hold a 4-3 majority. Kaul remains confident his argument will prevail. “We’re right on the law,” he tells TIME, adding that the consequences of the legal battle are steep.

“We’ve had sexual assault nurse examiners reaching out to our office already to ask about things like emergency contraception, questions about whether the law applies in cases of rape or incest,” Kaul says. “We’ve got this 19th century law that people are going to be trying to apply to 21st century medicine. And unsurprisingly, the language in the statute leaves important questions unclear.”

Read More: Without Roe v. Wade, U.S. Maternal Mortality Rates May Get Even Worse

Both of Kaul’s Republican opponents in the state attorney general race say they would enforce the 1849 law and criticize him for filing suit. “The Attorney General’s job is to uphold the law, not work to overturn it. This is simply another election year stunt to gin up the Democrats’ demoralized base,” former state Rep. Adam Jarchow said in a statement. Eric Toney, the district attorney for Fond du Lac Couny, Wisc., called the move a “political stunt.”

The Wisconsin governors’ race reflects a similar standoff. All of Evers’ potential Republican opponents have said they would enforce the 1849 law. The three who attended a debate this week said they would remove district attorneys who refuse to do so, according to the AP.

Wisconsin’s Republican lawmakers have said they may update the 1849 ban next year; Evers says that if he wins reelection, he will veto any such effort.

A recent Marquette University Law School poll showed Evers leading each of his Republican challengers, but the race is expected to be tough. The Marquette poll, which was conducted a week before the Supreme Court’s decision on Roe, found that Republican voters were more enthusiastic about voting than Democrats. But Celinda Lake, a veteran Democratic pollster, says that with abortion suddenly a “surging concern,” Democratic voters may be newly motivated. The issue of abortion “was already a very clear distinction in a number of the races,” she says. “If anything, the differences have become more stark, and I think it could massively influence Senate races and gubernatorial races and AG races.”

Read More: Democrats Want Biden to Do More on Abortion, But He Faces Tricky Legal Challenges

Like Wisconsin, Michigan has an old abortion ban on the books—this one from 1931— that makes abortion a felony with no exceptions for rape or incest. It’s temporarily blocked in state court, due to a lawsuit brought by Planned Parenthood. Democratic Gov. Gretchen Whitmer has also filed a lawsuit against the 91-year-old law, arguing that it violates the due process and equal protection clauses of the state constitution. She recently reiterated a call for the state’s Supreme Court to consider her case and decide whether Michigan’s constitution protects the right to abortion.

Whitmer and Democratic Attorney General Dana Nessel are also both up for reelection, and like in Wisconsin, their Republican opponents say they would uphold the 1931 ban.

State-level races in Pennsylvania, where abortion is currently legal up to 24 weeks of pregnancy, are similarly fraught. Pennsylvania has a number of abortion restrictions in place already, and Gov. Tom Wolf, a Democrat, has vetoed multiple anti-abortion bills during his tenure.

Wolf cannot run again due to term-limits. The Democratic candidate to replace him, Pennsylvania attorney general Josh Shapiro, has said he would also veto any abortion restriction. But his Republican opponent, Doug Mastriano, has said he supports a total abortion ban with no exceptions, including for the life of the pregnant person.

If Mastriano wins in Pennsylvania, the Republican-controlled legislature is all but certain to change the state’s abortion laws, which would be a huge shift for one of the most populous states in the country. And if Michigan and Wisconsin ultimately ban abortion, it would leave the Upper Midwest and Rust Belt states with very little access to the procedure.

A renewed focus on state legislatures

In some states like Arizona and Georgia, abortion is already likely to be restricted by the time the midterms comes around in November. But the make-up of state legislatures could still determine future changes in the states’ abortion laws.

Arizona’s 15-week abortion ban is set to take effect in September. The state also has a 1901 law on the books that criminalizes all abortions unless the pregnant person’s life is in danger. The state’s Republican Attorney General Mark Brnovich announced Wednesday he would ask a court to throw out an old injunction blocking the 1901 law, thus allowing it to take effect. Brnovich is up for reelection, and the state’s Republican Gov. Doug Ducey is term limited, so both of those positions could change party hands this year.

But Arizona is also a place that Democrats hope to make gains in the state legislature, where Republicans currently hold a slim majority. “The Roe ruling gives us an opportunity to go more on the offensive,” says Jessica Post, president of the Democratic Legislative Campaign Committee (DLCC), which helps Democratic candidates for state legislature.

The DLCC hopes to pick up seats in Arizona and Pennsylvania’s House and Senate, as well as in Georgia’s House this year. It will make a play to flip Republican majorities in New Hampshire and Michigan, and in Minnesota’s Senate. The DLCC has also seen an increase in support around abortion, Post says. After the Supreme Court draft leaked in May, the group raised $650,000 in the first 48 hours. In the first 48 hours after the Court’s decision last Friday, it raised nearly four times what it had the previous month at that time.

Democrats look to ‘not-radical’ mainstream Americans

Democratic strategists say the party is pinning its hopes on suburban voters, who they expect to be motivated to go to the polls by the Supreme Court ruling. The Maricopa County suburbs around Phoenix and the Philadelphia suburbs are particularly ripe for Democrats, says David Cohen, co-founder of Forward Majority, a Democratic group launched after Trump was elected to focus on state legislature races.

“This Court has a radical view of the future. And in my experience with swing voters, they’re not radical. That’s the whole deal,” says Cohen. “This perspective is going to be uniformly rejected by people who are mainstream Americans.”

North Carolina, which also has large suburbs around Raleigh, is another state where the legislature could help determine the future of abortion policy. Abortion is legal there up to 20 weeks and Democratic Gov. Roy Cooper is not up for reelection this year. But Republican lawmakers are aiming to win a veto-proof majority, which would allow them to pass new abortion restrictions. That goal is not out of reach: Republicans currently hold 28 out of 50 seats in the state Senate, just two short of a veto-proof majority, and 69 out of 120 seas in the House, just three short of what they need.

In 2023, Virginia’s state legislative elections will be key to abortion access there. Democrats spent millions trying to defeat Republican Gov. Glenn Youngkin last year and highlighted his anti-abortion views, but voters still elected him. Now Youngkin has called for at least a 15-week abortion ban in the state, and said he is open to stricter limits. “Virginia will be a huge state of focus for us in 2023. We have to take back the House and hold on to the Democratic majority in the State Senate,” Post says.

The stakes are considerable. Virginia hosts many out-of-state patients coming from the South, where abortion is quickly being banned. Losing that oasis of abortion rights would force many people to travel much longer distances to find appointments.

Read More: What Abortion Providers in Anti-Abortion States Will Do Post-Roe

Looking to state Supreme Courts

Partisan majorities could change hands this fall in state Supreme Courts in North Carolina, Ohio, Illinois, and Michigan, according to Bolts, which tracks down-ballot races. In North Carolina, where Democrats currently have a 4-3 majority, a shift could have a significant impact on abortion access. A Democratic-majority would likely strike down state abortion restrictions, while a Republican majority would be more likely to uphold future bans. In Ohio, where Republicans currently hold the majority, Democrats are hoping to shift that balance.

Democrats also have to play defense in Michigan and Illinois, where they are at risk of losing their existing state Supreme Court majorities. The DLCC is planning to throw its support behind races where state Supreme Courts could weigh in on redistricting fights and determine a state’s legislative control.

Ballot Initiatives

The last major way midterms could affect abortion access is through ballot initiatives. The most notable one is in Kansas, where voters will decide on Aug. 2 whether to amend the state constitution to say that it does not support abortion rights. The amendment explicitly gives the Republican-dominated state legislature the authority to pass new abortion restrictions or bans. This would reverse a previous ruling from the state’s majority-Democrat Supreme Court, which said in 2019 that the Kansas constitution protects the right to bodily autonomy.

Right now, abortion is legal up to 22 weeks of pregnancy in Kansas, and the state is currently a key outpost of abortion access in the Midwest. Democratic Gov. Laura Kelly is up for reelection in what is sure to be a challenging fight, and Republicans hold supermajorities in both chambers of the legislature. So without the state constitution’s protection, Kansas is likely to see more abortion restrictions.

Democrats in Michigan are also hoping to put a measure that would codify abortion rights on the ballot in November. Supporters are still collecting signatures for the measure to qualify, but that could be another way that abortion rights advocates seek to protect the procedure in the state.

Many of these abortion laws in battleground states won’t be settled until at least November, but the landscape for access is likely to keep changing even before then. More states are expected to ban abortion in the coming weeks, and the Supreme Court’s ruling has kicked off a host of legal battles over laws that are already in place. As more of the country restricts access to abortion and other forms of reproductive health care, this year’s elections in the remaining states—where laws are unclear and partisan control is on the ballot—now carry extraordinary weight.

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