Supreme Court Throws Abortion to an Unlevel State Playing Field

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In his concurring opinion to the Supreme Court’s decision to overturn Roe v. Wade, Justice Brett M. Kavanaugh struck a note of optimism that democracy and the will of the people would prevail, even on the agonizing issue of a woman’s right to end a pregnancy.

“The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process,” he wrote, adding that the court’s decision merely “restores the people’s authority to address the issue of abortion through the processes of democratic self-government.”

States, in other words, hold the power.

For Democrats, that is extraordinarily bad news: In many states, including Wisconsin, Ohio, Georgia and Florida, abortion’s new battleground is decidedly unlevel, tilted by years of Republican efforts to gerrymander state legislatures while Democrats largely focused on federal politics. As abortion becomes illegal in half of the country, democratic self-governance may be nearly out of reach for some voters.

By neutralizing federal rights and powers, the Supreme Court is turning states into battle zones. That goes beyond abortion and includes voting, immigration and civil rights. And if, as expected, the court restricts the federal government’s ability to regulate carbon dioxide, state governments, stepping in for a gridlocked Congress, will be left to address climate change as well. That would leave the future of the fight to lawmakers in places such as Sacramento and Oklahoma City.

Even as leaders of conservative advocacy groups celebrated a landmark victory on Friday decades in the making, they said that they were already gearing up for the next phase of the battle in statehouses and state Supreme Courts.

Thirteen states have so-called trigger laws designed to effectively ban abortion in the wake of the Supreme Court ruling overturning Roe v. Wade.

Others could look to strike the right to abortion from state constitutions. And still others, like Michigan and Wisconsin, have old laws predating Roe that ban abortion and that abortion rights advocates and political leaders are now trying to block.

“There is definitely going to be a lot of action in the states,” said Carrie Severino, the president of the Judicial Crisis Network, a conservative legal advocacy group that has helped elevate Republican judges. “The challenge is which states are going to have state courts that are likely to be well to the left of the people.”

Democrats may have won the popular presidential vote in five out of the last six elections, but Republicans control 23 state legislatures while Democrats lead 14 — with 12 bicameral state legislatures divided between the parties. (Nebraska’s legislature is elected on a nonpartisan basis.)

In a very real sense, the country is pulling apart, with blocks of liberal states on the West Coast and in the Northeast moving ahead with one agenda as the conservative center of the country moves in the opposite direction. State compacts on the coasts, for instance, have moved forward to stem emissions of climate-warming pollution while fossil fuel-dependent states in the center press for more production of oil, gas and coal.

The divisions have only been compounded in Washington, where Congress’s extremely narrow Democratic majority has been unable to pass significant legislation on climate change, voting rights, immigration or abortion rights, leaving those weighty issues to the courts and regulatory agencies. The Supreme Court’s 6-3 conservative majority is now making it clear that such matters must be decided by the people’s representatives. With Washington in gridlock, those representatives will have to be found in the states.

“What we are seeing is a pendulum that is swinging back to state power over fundamental rights,” said S. Karthick Ramakrishnan, a professor of public policy at the University of California, Riverside. “This is the result of decades of investment by movement conservatives.”

In states where the voting populations are ideologically divided, the political direction of governance in state capitals may be driven more by partisan power structures put in place by politicians than by public opinion. Even though the Supreme Court says it wants to empower voters, it ruled in 2019 that federal courts did not have the power to hear challenges to partisan gerrymandering. Its decision in Citizens United v. Federal Election Commission also removed many controls on campaign contributions, making it that much harder for statehouse battles to be waged in anything like a fair fight.

Unshackled by the Supreme Court and often largely unopposed by Democrats, conservative organizations backed by billionaires like Charles Koch — including the American Legislative Exchange Council and the Republican State Leadership Committee — set out more than a decade ago to dominate policymaking at the state level. And now, unfettered by the constitutional rights under Roe, that dominance can come to fruition on abortion access, often regardless of public opinion.

“Kavanaugh’s naïve theory is that the people speak and the legislature listens,” said Samuel S. Wang, the director of the Gerrymandering Project at Princeton University. “But for that to happen, you need a mechanism for their influence to be felt, and in some states, what you have are political parties building a system to keep themselves in power.”

In Ohio, Republicans hold an undeniable edge statewide, but it’s nothing like their 64-35 edge in the Statehouse or their 25-8 edge in the State Senate. Those advantages will likely yield a near-total abortion ban in the coming weeks. Because the gerrymandering of state legislative lines is so extreme, the only competition that Republican lawmakers fear is from even more conservative Republicans.

In Wisconsin, Democrats hold virtually every statewide office, including governor. Yet, waves of gerrymandering have left Republicans with close to a supermajority in the State Senate and Assembly. That means an abortion ban that was passed in 1849, when only white men could vote, is set to go back into force now that Roe v. Wade has been overturned.

“Because the structure of Wisconsin’s ultragerrymandered maps are so rigged against small-d democracy, we are going to have a law on the books that the overwhelming majority of Wisconsinites oppose,” said Ben Wikler, the chair of the Democratic Party of Wisconsin.

Georgia voted in 2020 for President Biden and for two Democratic senators, but those same voters barely made a dent in the state’s Senate and House. With the repeal of Roe v. Wade, Georgia’s law that passed in 2019 banning abortion after six weeks will soon take effect, and state lawmakers say they could tighten it.

Similar imbalances show up in Florida and North Carolina, where narrowly divided voting populations live under statehouses and state supreme courts that will determine the future of abortion with little need to reflect public opinion. Texas recharged the national battle over abortion last year after the Supreme Court refused to block a law passed by its Republican-controlled Legislature that banned abortions after six weeks and allowed deputized ordinary citizens to enforce the law.

The repeal of Roe v. Wade will trigger another law virtually eliminating the right to abortion in Texas in the coming weeks. Republicans are now discussing legislation to potentially allow district attorneys to prosecute people who are involved in abortions in neighboring counties and criminally punish anyone who helps a woman get an abortion in another state.

State Representative Briscoe Cain, a Republican, called the overturning of Roe v. Wade “a victory” for judicial philosophy.

“The issue should have been left to the states the entire time,” he said.

The state push has been intentional. The landmark Civil Rights Act of 1964 and the Voting Rights Act of 1965, passed after years of a bloody civil rights struggle that swelled from the ground up, helped conservatives recognize the importance of state power, Dr. Ramakrishnan said. Over the next five decades, conservatives heavily invested in legal scholarship and state level advocacy, as veterans of those earlier civil rights battles and newer crops of progressives tended to focus on federal policy.

“You can think of it as an erosion of rights from below,” he said.

In 2010, after successive Democratic waves left Republican power at a low ebb, Republican organizations devised what they called Project Redmap, pouring $30 million into state legislative races. They were confident that a backlash against Barack Obama, who was president then, in a redistricting year would yield a stranglehold on state capitals for years to come.

It worked.

Democrats insist now that they can fight back. The power of issues rising to the forefront this summer — not just abortion, but also gun violence and the Jan. 6, 2021, insurrection — could energize Democratic voters and sway enough Republicans to defy the partisan breakdowns of some gerrymandered districts.

“Your ability to cast a ballot or your access to abortion care is going to be more dependent on ZIP code more than it has in the past,” said Lindsay Langholz, a director at the American Constitution Society, a progressive legal organization.

Laphonza Butler, the president of Emily’s List, the powerful political action committee that has helped elect hundreds of women who support abortion rights, said her organization began shifting its focus to state governor’s races and legislative elections around 2016.

That shift came about as Republicans chipped away at the right to abortion. Emily’s List is now centered on backing Democratic candidates running in key states, including Gov. Gretchen Whitmer of Michigan and Stacey Abrams, who is seeking the governorship in Georgia.

“We are as angry as everyone else, and we are prepared to meet this moment,” Ms. Butler said.

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