Blue States Enact New Laws to Create Abortion Havens

This story was originally posted by Stateline, an initiative of the Pew Charitable Trusts.

If the U.S. Supreme Court decides in June, as expected, that all states can limit abortions to the earliest stages of pregnancy or ban the procedure altogether, hundreds of thousands of Americans are likely to start traveling to states where abortion remains legal.

In preparation, lawmakers in those states are considering bills that would remove hurdles such as waiting periods and parental notifications, and some are proposing to help low-income patients by paying for travel and other practical expenses that add to the true cost of abortion care.

Abortion providers and rights advocates also are urging states to remove barriers both to telehealth and to medication abortion, expand Medicaid coverage of the procedure, ensure the privacy of patients, protect providers from potential lawsuits from other states and invest in training and facilities for abortion providers. They want to ensure adequate capacity for what likely will be a surge of abortion refugees in some parts of the country.

“If lawmakers address barriers to abortion for people in need, who are most impacted by strict state abortion laws, they’ll address barriers for everyone, no matter where they come from,” said Andrea Miller, president of the National Institute for Reproductive Health, which assists and advises state policymakers.

Nearly three-quarters of people receiving an abortion in the United States are living in poverty, according to 2014 data from abortion advocacy and research group the Guttmacher Institute.

And in 2019, 38% of abortion patients were Black, according to data from the Kaiser Family Foundation. But the percentage of people receiving an abortion who were Black was substantially higher in Mississippi (74%), Georgia (65%), Alabama (62%) and other Southern states with strict abortion bans.

Abortion Patchwork

If the Supreme Court weakens or jettisons its 1973 abortion rights ruling, 26 states are expected to ban or severely restrict the procedure, according to Guttmacher.

Abortion rights are considered protected for the long term in the District of Columbia and 15 states: California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington, which enshrine the right to abortion in state law, according to Guttmacher.

Two other states may soon join that list. The Colorado legislature this month passed a bill that, once signed by Democratic Gov. Jared Polis, who supports the measure, would codify the right to abortion. And New Mexico, where an old abortion ban was repealed last year, is widely expected to be the next state to enshrine abortion rights in state law.

Lawmakers in many of those states already have experienced an influx of pregnant people from outside their borders over the past five years as a record number of GOP-led states enacted ever stricter abortion bans. Many blue states are considering new measures that would accommodate even greater demand for abortion in a post-Roe environment.

Backed by California Gov. Gavin Newsom, a Democrat who last year signed a bill protecting the privacy of people who receive abortions, lawmakers in the state have proposed a dozen abortion bills this session designed to address racial and economic inequities in abortion access and boost the state’s capacity to serve both residents and visitors as quickly as possible.

Legislation also is moving through statehouses in more than a dozen other states that would make it easier for residents and people from out of state to receive an abortion.

“In the past three years since 2019, we’ve seen the most action to protect abortion rights and increase access that we’ve ever seen,” said Elizabeth Nash, principal policy associate at Guttmacher. “What we’re seeing is blue states reacting to an onslaught of conservative state abortion bans and a solidly anti-abortion Supreme Court. This is a direct reaction to all of that.”

California Leads

Last week, Newsom signed a bill that will require private insurers and the state’s low-income Medicaid health plan to pay the full cost of abortion with no copays or deductibles.

The new law is one of a dozen bills proposed by California legislators this session aimed at supporting more equitable access to abortion care.

The package of bills, sponsored by the California Legislative Women’s Caucus and other top legislative leaders, is based on 45 recommendations for expanding access to abortion for state residents and those living elsewhere outlined in a December report from an advisory council convened by the governor.

“We’re talking about being a refuge for anyone in the United States who wants to come to California,” Assemblymember Cristina Garcia, who chairs the caucus, said in an interview with Stateline. “But the package of bills also aims to shore up access here in California and improve reproductive justice, making abortion accessible to our most marginalized community members.”

Beyond California, bills aimed at boosting access to abortion are under consideration in more than a dozen states, the largest number of proposals in any legislative period in history, Nash said.  

With roughly two months left before most legislative sessions adjourn, lawmakers are pushing hard in an election year to pass abortion access legislation. In addition to California’s insurance coverage bill, Colorado’s abortion rights bill and a New Jersey abortion rights bill signed in January by Democratic Gov. Phil Murphy, bills in three other states have been approved.

Maryland’s General Assembly this week passed an abortion protection bill, marking the first time in three decades the legislature approved a measure aimed at expanding abortion access statewide, Planned Parenthood of Metropolitan Washington, D.C., wrote in a news release.

The bill, which is headed to Republican Gov. Larry Hogan’s desk, would ensure private insurance covers the procedure without cost-sharing, expand Medicaid coverage of the procedure, appropriate $3.5 million for medical professionals who want to train in abortion care and allow not just physicians but also advanced practice nurses and physician assistants to perform abortions.

Hogan has not said whether he will sign the bill, but it received strong support among Democratic lawmakers, who hold a veto-proof majority in the Maryland General Assembly.

In March, Washington Democratic Gov. Jay Inslee signed a bill prohibiting the state from taking legal action against people seeking an abortion and those who assist them, to ward off any attempts to enact a Texas-style abortion ban that calls on private citizens to sue anyone suspected of aiding an abortion.

And the Oregon legislature approved $15 million in state funds to help abortion providers buy equipment and expand their workforce. The money also is slated to fund a hotline for patients seeking abortions in the state and to pay for travel and other expenses associated with an abortion.

Both the Washington and Oregon measures came in response to anticipated demand from people in Idaho seeking abortions after the Republican legislature passed a Texas-style abortion ban in March, prohibiting the procedure after six weeks of pregnancy, before many patients know they’re pregnant.

Legal Protections

California and Connecticut are the only states considering bills that would protect resident abortion providers from lawsuits filed by officials in other states where abortion is illegal.

“That’s a big gap that other states need to fill,” David Cohen, a professor at Drexel University School of Law, said in an interview. In a soon-to-be-published paper, he outlines the risks to abortion providers and the steps states can take to protect them.

To protect patients, providers and anyone who assists them, Cohen suggests, states should enact laws that block law enforcement agencies from cooperating with civil or criminal out-of-state investigations related to the legal provision of abortion in their states.

He and his co-authors Greer Donley and Rachel Rebouché also suggest that “states where abortion remains legal can instruct their medical boards and in-state malpractice insurance companies to abstain from taking any adverse action against providers who give out-of-state patients abortions that are legal in the provider’s state.”

Cohen pointed to a provision in a bill proposed this year in Missouri that would make it illegal for a Missouri resident to seek an abortion in another state. He said Missouri is not likely to be the last state to try to do that.