Renee Bracey Sherman answers the phone and apologizes – is it OK if we speak while she drives? Like many abortion advocates, she tends to keep a packed schedule and talk at lightning speed – the next initiative, the next law, the next policy on the horizon. Ask advocates how they felt in June after the Dobbs decision sharply curtailed reproductive rights across the US, or in November after wins in the midterm elections signaled strong public support for abortion, and they’ll answer immediately: We knew this was coming; but the fight’s not over.
What Bracey Sherman – founder and executive director of We Testify, a group focused on the leadership and representation of people who have abortions – and her colleagues in the pro-choice movement don’t spend much time doing is elaborating on the past, or how they mourned or celebrated, because it’s already in the rear-view window. Their eyes are laser-focused on the future.
“We’re doubling down,” Bracey Sherman said.
Abortion was a central issue in a midterm election that saw Democrats retain the Senate and relinquish only a narrow majority in the House. In Kentucky and Montana, voters rejected anti-abortion initiatives on the ballot; and in Michigan, California and Vermont, voters chose to establish reproductive rights in state law. Over the summer, Kansas voters similarly rejected a ballot measure to remove abortion rights from its constitution.
“When abortion was on the ballot, it won, so that was fantastic,” said Elisa Wells, co-founder and co-director of Plan C, an organization that helps access abortion medication. Those wins “really demonstrate that legislators are out of touch with what the majority of Americans want. They support abortion access, and understand that it’s basic, common medical care.”
So pro-choice advocates are taking the fight to new areas, principally access to abortion care, which is now heavily restricted in many places, and support for abortion seekers in states that have criminalized it.
The focus is squarely on the states. For the next two years, with Congress divided, it’s understood that little will get done at the federal level.
“The state level is probably where abortion rights advocates will need to work, and have had some success in the last year,” said Shana Kushner Gadarian, professor of political science at Syracuse University.
Ballot initiatives were one of those real successes. It’s important for organizers “to get things directly in front of voters, because they seem to be winning on that side”, she said.
They were successful in two ways. First, reproductive health can be an issue that stretches across partisan lines, with Democrats, Republicans and Independents alike voicing some level of support for abortion – especially when it comes to opposition to total abortion bans.
But the Dobbs decision also drove a surge in voter registration, especially for Democrats, and it made abortion rights a more salient voting issue, even beyond ballot initiatives, Gadarian noted.
That translated into results. Voters opposed anti-abortion candidates in several states: Arizona, Kansas, Michigan, Pennsylvania and Wisconsin elected Democratic governors who could veto anti-abortion legislation, while Republicans in Arizona, North Carolina and Wisconsin failed to reach a supermajority in both the state senate and house, making it impossible to override such a veto.
That’s a strong message to candidates in future elections. “Politicians care about re-election,” Gadarian said. “They want to make sure that they’re not going so far ahead of the public that they are going to get punished during the next election cycle.” That could mean instituting less-encompassing laws in conservative states, such as Florida’s 15-week restrictions, she said.
Anti-abortion advocates went too far by creating state-level bans, which are extremely unpopular, and even pushing for a nationwide ban, said Bracey Sherman. “They overplayed their hand on everything.” There was also an unprecedented number of candidates and elected officials who were open about their own abortions – “a historic moment” for abortion support, she said.
Advocates in at least 10 states with restrictive abortion policies are now considering ballot initiatives. In Oklahoma and South Dakota, abortion advocates have asked to add initiatives to 2024 ballots; while several key leaders in Missouri, which has a near-total abortion ban, are up for re-election in two years, and the state could also see ballot initiatives in 2024.
New ballot initiatives could enshrine abortion rights into state law in New York, New Jersey and Ohio, a proactive move that several states have taken. In some states, citizens can put forth the proposals to be added to the ballot, or they may ask their state lawmakers to add them.
Next in Kentucky is a legal challenge to the near-total abortion ban after six weeks that has no exceptions for rape or incest and that only allows abortions under a licensed physician’s care and if life-saving organs are threatened. Even if that challenge is successful, the next ban in place is on pregnancies after 15 weeks – so the fight would need to continue, advocates say.
One important takeaway from places like Kansas, the first state to put abortion rights to a vote this summer, is that long-term community organizing and education was highly effective. Other grassroots organizations are taking note. The Afiya Center, a reproductive justice organization in Texas that had to stop its work as an abortion fund due to new state law, is focusing more on community mobilization, voter registration and education campaigns.
“We are actually launching a voter engagement campaign at the top of the year, called ‘I am a reproductive justice voter,’” said Cerita Burrell, director of programs at the Afiya Center. “We need to educate folks more on the electoral process. It really comes down to policy and lawmakers – getting the right people in office that understand the right to full bodily autonomy.”
Elsewhere, the pro-choice movement is not just entrenching but pushing as many laws as they can, “and they’re sticking”, Wells said. “So why don’t we go on the offensive?”
Some groups are focusing on shield laws to protect providers who prescribe abortion medication via telehealth. In July, Massachusetts passed a sweeping law that shields providers who offer care to residents of states where it’s restricted. “With this new law in place, we’re helping get a group together of providers who would then be able to legally provide telehealth care into states that restrict access,” Wells said. Other states should do the same, she said.
Plan C advocates for exactly that, as well as pushing to remove federal regulatory limitations on medication abortion. Some international organizations like AidAccess already ship to places where state law restricts abortion.
Abortion pills are “safer than Tylenol, safer than Viagra – it doesn’t need to be as highly regulated and medicalized as it is”. Wells said. “Why are these restrictions still standing on this extremely safe and effective technology? It’s politics.”
She would like to see abortion medications available over the counter. “Our philosophy has always been you really need to push the envelope and try these things, because they might stand up,” Wells said.
Courtrooms, not coat hangers
With medication and self-managed abortion, safety is not the concern it was in pre-Roe America. The current challenges are not about back-alley abortions and coat hangers, advocates say.
“Self-managed abortion now does not look like what it looked like in the 70s,” said Jennifer Lim, the communications and media director of Indigenous Women Rising, a reproductive justice organization that runs an abortion fund. “We don’t lean in towards, ‘We won’t go back’, because we don’t have to – the future looks very different than what it used to. Abortion pills are very safe, they’re very effective. But the criminalization aspect is a whole different part of it.”
Criminalizing pregnancy was a rising threat even before Roe was overturned, and the Dobbs decision could see prosecutions jump.
So legal assistance in a rapidly changing and often confusing landscape has become a huge new area of focus.
“We need to stop criminalizing people for their pregnancy outcomes,” Wells said. “We need to not have criminal charges falling on a person who needs healthcare in our country.”
And those who have been marginalized – people of color, people living in poverty, gender-variant folks, younger people, immigrants – are the most likely to experience challenges like these. “It’s people who lack access and resources and face obstacles who are left with fewer options,” said Jill Adams, executive director of If/When/How, a legal resource for reproductive justice.
The organization’s Repro Legal Helpline has seen a 14-fold increase in inquiries since the Dobbs decision. “We expect that higher level of interest to maintain, and we have been staffing up,” Adams said. The jumble of reproductive laws in the US is puzzling to anyone attempting to navigate care, Adams said, and many callers at first “need to understand what the legal landscape is – what, if any, legal risks they face so that they can make the decision that’s best for them,” she said.
If/When/How also has a Repro Legal Defense Fund to provide financial assistance to people who have been criminalized for abortion, including partners, friends and family members. The fund supports pre-trial release, with bail bonds and bail alternatives, as well as the full costs of legal defense. More money is going into that, too, Adams said.
Abortion was a “hot topic” in the midterm elections, with politicians relying on the issue to turn out voters, Lim said. “How do we get folks to stay engaged and understand that this is a long-term battle?” she asked. “We don’t want to lose momentum.”