If this is the year that Roe v. Wade fell, 2023 will be the year that kicks off what promises to be a years-long, state-by-state brawl between Americans who believe abortion is essential to freedom and Americans who believe the procedure is murder.
Come January, state legislatures across the country will open for business. Conservative lawmakers will try to narrow the last few avenues to abortion available in red states. Abortion rights activists, buoyed by their victories in the midterms, will push for more ballot measures. Many of these legislative and political showdowns will likely end up in the courts.
All these efforts will not only make abortion access even more fraught, but further deepen the divide between red and blue states. They will also raise questions about the clash between the nation’s First Amendment and its long-dormant laws, and fuel a crisis of faith for Republicans: Do they tiptoe around abortion, or double down?
The nation will start to taste the impact of overturning Roe. March will mark nine months since the overturning of Roe v. Wade—and, in all likelihood, the beginning of the births of babies from people who would have otherwise gotten abortions.
“I think poverty of women and child poverty are going to go up,” said Carrie Baker, director of the Program for the Study of Women and Gender at Smith College. “We're going to see significantly an impact on women's labor force participation earnings. We're going to see increased turnover and time off from work among women of reproductive age.
Here’s what’s next for abortion rights in 2023.
State legislatures open in January—and with these openings will come more restrictions.
By the time the Supreme Court ruled to overturn Roe in June, many of the country’s state legislatures had shut down for the year. In January, state lawmakers will head back to work.
“You have a lot of state legislators who are Republicans who feel very beholden to anti-abortion voters, both from the standpoint of winning primaries and getting donations,” said Mary Ziegler, who studies the legal history of reproduction at the University of California, Davis, School of Law. “But you also have Republicans were worrying that the abortion issue is bad for them and that especially eliminating things like rape and incest exceptions are likely to make the issue even worse for them than it otherwise would be.”
States like Florida, which outlaws abortion after 15 weeks of pregnancy, or Georgia, which bans it past roughly six weeks of pregnancy, may tighten up those bans to start earlier on in pregnancy. Legislators in those states, Ziegler said, could find themselves mired in debates over whether to allow abortions in cases of rape and incest.
State lawmakers will often pre-file bills in December. Ahead of Roe’s overturning, some anti-abortion activists started murmuring about limiting people’s ability to travel across state lines for abortion, or helping others do so—a practice they called “abortion tourism.” But Elizabeth Nash, principal policy associate of state issues at the Guttmacher Institute, which tracks abortion restrictions, has not yet seen any bills that explicitly limit people’s ability to travel.
That doesn’t mean that abortion foes won’t try to attack the issue obliquely. They could require that abortion funds, which can help people travel, report information to the state, or mandate that they tell abortion seekers misinformation.
“It could kind of go down a laundry list of restrictions that could be placed on abortion funds and practical support organizations that would make it hard for them to operate,” Nash said. “It could have really wide-ranging effects around not only accessing abortion and sharing information about abortion, but even understanding abortion or reading about abortion in the news.”
Steve Aden, chief legal officer for Americans United For Life, warned that trying to stop people from traveling across state lines for abortion is “wrong-headed policy.”
“There is a constitutional right to travel,” Aden said. “States should not seek to, and we don't encourage them to, seek to prohibit people from traveling across state lines, even if it's to secure something that's illegal, like abortion.”
Americans United for Life is famed for its wildly successful playbook of anti-abortion model legislation, which state lawmakers can lift by just writing in their states’ names. Now, the organization is working on model legislation that could cut down on access to abortion-inducing pills, one of the anti-abortion’s greatest goals. Specifically, these bills will require abortion patients to meet in person with a provider if they want a medication abortion, which are induced using pills. Last year, the Food and Drug Administration decreed that people do not need to meet with providers before undergoing that kind of abortion.
“It’s our position, contrary to the Biden administration, that states do have the authority to enact stronger protections for patients generally than the federal drug guidance offers,” Aden said. “And we feel confident that the federal courts that are looking at this issue will come out that way, when it's all said and done, and will affirm that states do have the authority to come to enact stronger control, stronger protections for women considering chemical abortion than the FDA has.”
Americans United for Life has also released model legislation that could also be used to essentially funnel more money to crisis pregnancy centers, anti-abortion facilities that aim to convince people to continue their pregnancies. With thousands of locations, these facilities already far outnumber abortion clinics. Texas, which has long pioneered anti-abortion strategies that then get exported to the rest of the country, has already devoted millions of dollars to its “Alternates to Abortion” program, which has funded crisis pregnancy centers in the past.
One proposed bill in Texas caught Nash’s eye, because it would allow pregnant people to use the HOV lane. Although the bill may seem inconsequential, that language would essentially make a fetus legally qualify as a person—which would have enormous implications for all of U.S. law.
Legal battles over abortion will continue.
Roe’s demise triggered abortion bans in at least 13 states, but not all of those bans are now in effect. Thanks to court battles, abortion rights have flickered to life in states like Ohio, Georgia, and Wyoming. Some of those battles are now stretching into 2023, potentially giving some patients time to still get the procedure.
But the biggest legal challenge to abortion could come in the shape of a lawsuit filed in Texas last month. In November, four doctors and anti-abortion groups sued the FDA, claiming that the FDA had overstepped its authority when it approved the drug mifepristone for use in abortions in 2000. Mifepristone is wildly popular: In 2020, medication abortions, which use mifepristone, accounted for more than half of all U.S. abortions.
If the lawsuit succeeds, it could imperil the entire nation’s access to medication abortion—regardless of whether a state has protected abortion rights.
George Delgado, one of the doctors who has championed the controversial and unproven method of “abortion reversal” is among the doctors who are suing. The doctors and groups are being represented by the Alliance Defending Freedom, the deep-pocketed legal arm of the anti-abortion movement. The Alliance Defending Freedom, which has ties to Justice Amy Coney Barrett, also architected the Mississippi 15-week abortion ban that was ultimately used to overturn Roe.
The lawsuit’s claim about the FDA is likely a longshot. But the lawsuit was also filed in Amarillo, Texas, which means it could end up on the desk of Matthew Kacsmaryk, a Trump-appointed conservative judge who recently took aim at Title X, the nation’s largest family planning program.
There is one other looming legal threat to abortion pills. In November, Students for Life of America launched a petition urging the FDA to require doctors who dispense abortion-inducing pills to treat the fetal remains left from abortions as medical waste, because, the group says, that waste could constitute a threat to the environment. If that petition succeeds, the requirements would be so onerous for providers that access to medication abortions would effectively vanish.
Anti-abortion activists could harness a 19th-century law to curtail even talking about abortion.
In 1873, a century before the Supreme Court decided Roe, Congress enacted the Comstock Act. Technically meant to block people from sending “obscene” materials through the mail, though it did not define what, exactly, counted as “obscene,” the Comstock Act was essentially a cudgel that could be wielded against all efforts to expand information and access to birth control and abortion. Now, some abortion opponents have seized on the 19th-century law, arguing that the federal provision trumps any state laws to protect abortion rights.
The city council of Pueblo, Colorado, recently tabled a proposed ordinance that would amount to banning abortion within city limits. That ordinance would have flown in the face of Colorado law, which protects abortion rights. But Mark Lee Dickson, a prominent anti-abortion activist who has helped more than 60 cities essentially ban abortion by declaring themselves “sanctuary cities for the unborn,” has said that the ordinance is legal thanks to the Comstock Act.
“No decision of the Colorado court and the Colorado legislature can change the fact that in the 1870s, Congress passed these laws that are on the books. So until Congress repeals those laws, these are the laws we're under,” Dickson told a local news outlet. He added, “This was written to survive a challenge. If the state of Colorado does want to challenge that, then there's a place that we can take this, and that's the Supreme Court of the United States.”
The lawsuit filed in Amarillo also references the Comstock Act, claiming that the FDA has failed to follow laws that “expressly prohibit the mailing or delivery by any letter carrier, express company, or other common carrier of any substance or drug intended for producing abortion.”
Aden suggested that, if a Republican administration were in power, it could one day use the Comstock Act to limit abortion. “If we either had a pro-life administration or at least one that respects the role of the executive branch, we would be discussing how and under what circumstances the federal law prohibiting sending abortion-inducing drugs in the federal mails applies,” he said. “I wish that we were having that discussion.”
The Comstock Act almost certainly won’t be anti-abortion advocates’ only attempt to curb people’s ability to share information about abortion. Even before Roe fell, states passed laws requiring doctors to give patients misleading information about the procedure. The controversial Texas six-week abortion ban, enacted last year, also targeted people who assist in procuring an abortion, which could include passing on information about how to get one.
Now, without Roe’s protections, similar efforts will likely only intensify. The National Right to Life Committee, one of the nation’s oldest anti-abortion organizations, has proposed model legislation that would go after people “aiding or abetting an illegal abortion.” Aiding and abetting, in the eyes of the group, includes providing any information about self-managing an abortion or obtaining an illegal abortion, or even having a website that “facilitates efforts” to get an illegal abortion.
To stay out of legal trouble, institutions may even start to self-censor. In September, the University of Idaho warned employees in a memo that they could be fired if they referred students for abortions or even offered them birth control. The memo also said that, in light of Idaho’s new abortion ban, employees should not to provide birth control at all. Even condoms could only be offered “for the purpose of helping prevent the spread of STDs and not for purposes of birth control.”
“The line between giving information and advising people or encouraging or conspiring—what's that line?” Baker said. “I have no doubt that they will try to make that line, ‘If you say “the A word,” you're encouraging it. Therefore, it's an act, not speech, and therefore, we can throw you in jail.’”
Don’t expect ballot initiatives to save abortion.
For decades, anti-abortion groups promised Republicans that opposing abortion was a winning issue at the ballot box. But, after Roe’s overturning, that didn’t exactly pan out.
The first hint that something had gone dramatically wrong for anti-abortion politicians arrived in August, when voters in Kansas—the literal middle of the country—decided not to strip their state constitution of abortion rights. Then, in November, abortion opponents went zero for five on abortion-related ballot measures. California, Vermont, and Michigan—a decidedly purple state—all voted to enshrine abortion rights in their state constitution. Montana voted not to adopt a measure that involved legislating doctors’ treatment of infants, which anti-abortion advocates had pushed. Even voters in deep-red Kentucky, home of Senate Minority Leader Mitch McConnell, decided against affirming that their state constitution does not support abortion rights, giving abortion rights supporters a narrow path to one day bringing abortion rights back to the state.
These stunning victories demonstrated that abortion, long an afterthought for American voters, was finally inching up their priority list. Abortion rights supporters in Idaho, Nebraska, and Ohio all started to crow about their plans to give voters the chance to comment directly on abortion.
“It’s a when,” Kellie Copeland, executive director of Pro-Choice Ohio, told the Ohio Capitol Journal. “It’s not an if.”
But these ballot measures won’t be enough to protect or restore abortion access across the United States. In total, there are 22 states that have a near-total or six-week abortion ban on the books, according to a FiveThirtyEight analysis. (Some are active, thanks to legal and logistical challenges—on any given day, about 12 to 14 states tend to have an abortion ban in effect.) Of those 22 states, 15 don’t allow citizens to initiate constitutional amendments.
Republicans in Ohio are also moving to make it harder for voters to amend the constitution; they want to create a spring 2023 ballot measure that would, in the future, require citizen-led ballot measures to garner 60 percent of the vote in order to pass. (That rule wouldn’t apply to ballot measures generated by the GOP-controlled state legislature. They would still only need a simple majority to pass.)
Even if you gave people in some states the chance to vote on abortion rights, they’d still likely choose to ban them. While most Americans wanted to keep Roe, a majority of voters in states like Alabama, Arkansas, and Louisiana all think abortion should be illegal in most or all cases, according to data collected by Civiqs.
The midterm results from state legislatures highlight voters’ mixed feelings about abortion. And that’s where voting on abortion can matter the most next year, given that the vast majority of abortion restrictions are state-level. Democrats held off Republican victories in state legislatures like North Carolina, where the GOP was hoping to secure a veto-proof majority that would allow them to further restrict abortion in the state. But Republicans held onto governor, attorney general, and state legislative seats in states that enforced abortion restrictions in the wake of Roe’s overturning. In other words, they kept their ability to keep abortion restricted, or limit it further, in red states.
“Blue states protected abortion rights as expected,” Catherine Glenn Foster, president of the powerful anti-abortion group Americans United for Life conceded in an op-ed. “But public officials who have supported or enforced limits on abortion in nearly 20 red states were re-elected.”
Kristan Hawkins, president of Students for Life of America, tweeted that the midterms demonstrated the need for abortion opponents to focus on federal restrictions for abortions. “This is why our mission in the pro-life movement is two-fold, changing minds AND laws,” she tweeted. “And this is why we need federal protections for preborn children. Like other injustices our nation faced in our past, some states will just refuse to acknowledge human rights and progress.”
Republican Sen. Lindsey Graham, of South Carolina, has already introduced a bill to ban abortions after 15 weeks of pregnancy. So far, it’s amassed little support in Congress.
“The national Republican Party doesn't want anyone to do anything about abortion at all at the moment,” Ziegler said.
Correction 12/28: This story has been corrected to reflect that an abortion ban in Pueblo, Colorado, did not pass. We regret the error.