On September 15, two weeks into a near-total ban on abortion in Texas, the city commission of Portland, Ore., voted to vastly expand abortion access by granting $200,000 to the Northwest Abortion Access Fund.
Portland is one of a rising number of cities and states that have quietly expanded abortion access, catalyzed by Texas and a Supreme Court that is poised to end access to legal abortion as we know it.
“I feel like we have a moral imperative here to prepare,” Christel Allen, executive director of NARAL Pro-Choice Oregon, said. “What we will likely face is an influx of people needing to travel to places like Oregon.”
Sometimes the contrast between states like Oregon and Texas feels head-spinning.
“I do think that it is crazy that we live in the same country,” said Dr. Bliss Kaneshiro, an abortion provider in Hawaii. In April, even as experts warned that the ongoing state legislative session would be the most devastating in history for abortion rights, Hawaii enacted a law to expand the ability of advanced practice nurses to perform abortions.
In the United States, access to abortion has long depended on the state and even the city where you live. That’s in part because there has been no federal legislation to expand or protect access to abortion in almost 30 years. After Texas this month shut down almost all legal abortions in a state that is home to one in 10 women of reproductive age, the House of Representatives today passed the Women’s Health Protection Act, which would protect the right to access abortion nationwide. But even in this moment of crisis, Senate Democrats seem to lack the political will to force it through.
“When you think about the history, just on the abortion issue, it has really always begun and ended at the state level,” Andrea Miller, president of the National Institute for Reproductive Health (NIRH), said. The Supreme Court’s role has been to limit how much states can restrict care, Miller added, “but those federal protections were never an expansive recognition of affirmative rights.”
Since Roe v. Wade, Democrats have focused on defending the status quo, while Republicans have moved to chip away at access, state by state. But reproductive health advocates are advancing a state and local playbook of their own, and the crisis in Texas has added renewed urgency to this work. Over the past decade, local activists and lawmakers working in coalition with national organizations like the NIRH have passed proactive policies to increase the number of abortion providers, repeal anti-abortion restrictions, expand insurance coverage of abortion, and protect access to clinics. Even in states where abortion is heavily restricted, these efforts have expanded access to contraception, protected the reproductive rights of incarcerated people, and addressed maternal mortality.
Popular
"swipe left below to view more authors"Swipe →
“While the House and the Senate are really stalled at any movement, state legislators can move really fast to either really protect our rights or to remove them,” Jennifer Driver, senior director of reproductive rights at the State Innovation Exchange, a network of more than 3,500 elected officials that seeks to advance progressive policy.
Here are three paragraphs you can read the next time you get discouraged about the state of abortion access in the United States.
This year, states enacted 11 proactive laws to protect abortion access. New Mexico repealed its 1969 law that criminalized abortion. Virginia repealed a ban on abortion coverage in its state insurance exchange. Washington required college health insurance plans that cover maternity care to cover abortion. Connecticut banned deceptive advertising from crisis pregnancy centers.
Proactive legislation saw its most prolific year in 2019, following a wave of state-level progressive victories that put seven more state legislative chambers and seven more governorships under Democratic control. States and the District of Columbia introduced 944 measures to protect reproductive health and justice and enacted a record number of laws to protect and expand abortion access: 15 across nine states, according to the NIRH. These laws codified the right to an abortion, decriminalized self-managed abortion (Nevada), required public universities to provide medication abortion on campus (California), and required abortion coverage under Medicaid (Maine). Even in states like Texas and Arkansas that have sought to end abortion, lawmakers advanced measures to protect the rights of pregnant people who are incarcerated. In 2020, about half a dozen measures to expand abortion access were enacted. Massachusetts created an affirmative right to abortion and repealed parental consent requirements for 16- and 17-year-olds.
Here’s more good news from the local level: Portland is the third city since 2019 to allocate funding to support abortion access, after New York and Austin. Cities and counties elsewhere are moving to follow suit. In Florida, even as state lawmakers filed a near-total abortion ban, the city council in St. Petersburg is considering allocating $40,000 in Covid relief funds to pay for abortions and associated costs.
“The $40,000 would be like manna from heaven,” said Kelly Nelson, board member of the Tampa Bay Abortion Fund. The organization’s budget would increase from $120,000 to $160,000 if the funding goes through. “It would enable us to serve many more people.”
This proactive strategy has been successful enough that the national organizations supporting it have been compared to the left’s version of the right-wing American Legislative Exchange Council, the secretive, corporate-funded bill mill that produces copycat legislation for state lawmakers. Both NIRH and SiX reject the comparison, saying their work is driven by local needs, not top-down strategy. That doesn’t mean the policies they support don’t sometimes catch on and spread from state to state.
Demetrias Wolverton, for example, an organizer with the YWCA of Kalamazoo in Michigan, was excited to learn about New York’s public funding initiative during a policy conference in 2019.
“I was like, this is dynamic,” Wolverton said. Wolverton was drawn to the idea that it was the job of the government, not nonprofits, to provide funding for basic health care, especially in a community with as many health disparities as Kalamazoo. “If anybody should be [responsible for this] it should be the system that created it, which is the government.”
One of the benefits of pushing for these measures at the local level, Wolverton said, is the opportunity to educate local officials about racism and reproductive health care needs in a community where babies of color are four times more likely than white babies to die. In April, the Kalamazoo County Board of Commissioners voted to allocate $43,900 to the YWCA to support access to doulas and gender-affirming care, including and name and gender-marker changes, HIV-prevention medication, and hormone replacement therapy. Wolverton said the organization will use private donations to provide funding for reproductive health care, including emergency contraception, abortions, and related transportation costs.
“On any given day, one person could need access to all three of those services,” Wolverton said.
Proponents of the proactive legislation strategy hold up examples like these to show the strategy’s success. But they acknowledge that the overall picture is one of rapidly diminishing abortion access. In 2021, states enacted 90 anti-abortion laws—a record high, and more than eight times the number of proactive abortion laws enacted over the same period. Many states that have passed legislation to ease abortion access are those where it is already legally secure. But even in deep-red pockets of the country, efforts that are part of a broader reproductive justice agenda have succeeded. In Georgia this year, the state expanded postpartum Medicaid coverage. Indiana lawmakers voted to fund doulas under Medicaid in 2019—although the funding was reportedly stripped at the last minute.
And in Kentucky, a city ordinance protecting the last independent abortion clinic in Kentucky, EMW Women’s Surgical Center in Louisville, took effect this month. The ordinance creates a 10-foot-wide buffer zone outside the clinic.
Meg Stern has been a volunteer escort there for 20 years, helping to shepherd patients through a gauntlet of shouting protesters outside the clinic. There is a photo she likes to point to in order to illustrate just what patients have to face to get through the clinic’s door. Taken from overhead by a drone, the photo shows a few dozen unmasked protesters holding signs with slogans like “Abortion: An American Holocaust” clustered on either side of the clinic’s door, positioned such that anyone walking into the clinic must pass within a few feet of them. Orange-vested escorts line the sidewalk. To one side of the door, another group of protesters have outfitted themselves in yellow vests in an apparent effort to try to imitate the clinic escorts. A police cruiser is double-parked in the road. But the officer isn’t there to control the chaos outside the clinic. If you zoom into the frame, you can see that the officer is ignoring the protesters and is instead rousing an unhoused person who appears to be sitting under a blanket in the doorway of the anti-abortion pregnancy center next door.
This is not the worst of it, Stern said. In February, an armed police officer pulled up in a cruiser with a passenger and joined the anti-abortion protesters outside the clinic, even holding a sign. The department declined to discipline him.
There is a federal law, passed in 1994, that is supposed to protect clinics in situations like this. In 2017, federal prosecutors invoked the Freedom of Access to Clinics (FACE) Act to protect the Louisville clinic after a blockade by Operation Save America, an extremist group known for its regular clinic blockades in the 1990s. About 500 protesters showed up the day before Mother’s Day in 2017.
“It looked like a swarm of bees had overtaken the entrance,” Stern later wrote about the experience.
The FACE Act was the last major federal piece of affirmative legislation to protect abortion access. It has barely been used since its passage, even though escorts like Stern have routinely sounded the alarm on protesters assaulting escorts and patients, harassing people, and blocking the clinic entrance. The battle to get the city council in Louisville to pass an ordinance protecting the clinic has taken five years, and is still ongoing. Stern and fellow activists arrived early to biweekly council meetings to nab one of three possible spots the council would allow for speakers in favor of a given topic. They launched a petition and a social media campaign. They persevered even after former Metro Council member David Yates, who is now a state senator, said on the record during a meeting that he had gotten text messages from police officers in the city joking about how the police wouldn’t enforce the law. “I’m getting text messages from our police officers going: ‘Who’s going to enforce this? Laugh out loud,’” Yates said in August 2020.
That year, the buffer zone proposal was brought to a vote and failed. This May, championed by a new council member, it finally passed.
Stern is realistic about the size of the victory.
“The experience has definitely reinforced my belief that community safety measures are often far more impactful than legal measures,” she said.
On September 18, the first Saturday that the buffer zone was in effect, the clinic called police several times to enforce the law, as protesters used a portable amplifier and some ignored the freshly painted yellow lines around the door. The first call was at 7:40 am. Police never came, according to the clinic. The Louisville Metro Police Department—the same department whose officers shot Breonna Taylor dead last year—issued a statement saying it had more urgent priorities than enforcing the law at the clinic, according to the Louisville Courier-Journal.
That doesn’t mean the measure wasn’t worth fighting for.
“Obviously, I care a lot about this and have put years of work into seeing this law passed,” Stern said. “Do I think it’s going to fix everything? No. Do I think it might make a small difference, a small dent in that status quo? I am hopeful that it will.”
These small victories have obvious limits, not the least of which is that any of these policies could be challenged before a Supreme Court that has demonstrated its willingness to allow even the most extreme anti-abortion policies to take effect. People who live in states where abortion is heavily restricted will need to travel to benefit from many of these measures, deepening the geographic inequality that already defines abortion access in the United States. But if the anti-abortion movement’s success since Roe v. Wade has demonstrated anything, it’s that incremental victories can lead to more incremental victories, building political momentum that may succeed beyond anyone’s wildest dreams.
That’s what Miller of NIRH is banking on, at least.
“Our movement has been at it for not as long as they have,” she said. “They’ve been at it for 40 years and they were trying to pass things that were absolutely unthinkable and now are coming to fruition 40, 50 years later.…
“So part of this is you have to understand that we’re all playing the long game here.”
