In the month since the U.S. Supreme Court ended the federal right to abortion, red states in the Deep South have been one-by-one criminalizing nearly all abortions.
As of this week, most abortions are banned in Alabama, Georgia, Mississippi and South Carolina. Other states in the South also have strict abortion bans that are in flux because of court appeals.
But on the geographical edge of this block of Deep South states, abortion is expected to remain legal in two states, at least until the November elections.
Southerners are flocking to both Florida and North Carolina for clinical and medication abortions — in North Carolina as late as viability, typically between 24 and 28 weeks of pregnancy, and in Florida, until 15 weeks of pregnancy.
Neither state set out to become an abortion oasis, and neither state will necessarily remain one after the midterm elections. But abortion providers and their patients are evolving with quickly changing circumstances.
In an example of the whiplash in the region, the Tampa Bay Abortion Fund was helping Floridians who were more than 15 weeks pregnant travel north to Georgia for an abortion until early last Wednesday afternoon, founder Kelly Nelson said, when a Georgia court suddenly switched the state’s abortion limit from 22 weeks of pregnancy to six weeks.
Now, Georgians seeking abortions are driving south to Florida or north to North Carolina, depending on where they live.
And Nelson’s group has begun helping its Florida patients who are more than 15 weeks pregnant travel mainly to Illinois, where well-funded health clinics and a supportive state government are prepared to provide abortions for tens of thousands of out-of-state patients every year for the foreseeable future.
“Our perspective is that anyone who wants an abortion can get one if they know who to call,” she said. “No matter what politicians do, there will always be organizations like mine that will make abortion possible. In Florida, we’re planning for the worst.”
Florida Voice for the Unborn and other anti-abortion advocacy groups in the state have asked Republican Gov. Ron DeSantis to call a special legislative session to consider a complete statutory ban on abortion, but so far, he’s demurred.
Unlike in their neighboring states, a majority of people in both Florida and North Carolina favor keeping abortion legal, according to recent polls. But since politics doesn’t always follow public opinion, most local political analysts are reluctant to predict November’s outcome.
Both states’ legislatures already are controlled by Republicans. But in Florida, abortion rights may depend on whether the governor is reelected, and in North Carolina, on whether Republicans gain a veto-proof supermajority.
Here’s what legal and political analysts are saying about the future of abortion rights in the South’s two outlier states:
Abortion rights in Florida hinge primarily on whether avowedly anti-abortion DeSantis is reelected in November. Both of his Democratic opponents have said they’ll veto any attempts by the legislature to restrict abortion access.
Despite his record-breaking political war chest and favorable ratings, most analysts say it’s too soon to predict whether DeSantis, who is considered a likely 2024 presidential candidate, will win Florida’s gubernatorial race in November.
Florida is considered a Republican stronghold. But after the statehouse passed the 15-week abortion ban in February, 57% of a sample of registered voters said they opposed the law, while 34% supported it, according to a poll by the University of North Florida.
A more recent poll of Florida residents conducted by the University of South Florida in July showed that 57% of Floridians disapproved of the recent Supreme Court decision overturning Roe v. Wade and one-third of respondents said the state should protect abortion rights.
Adding even more uncertainty over the issue, a Florida court is slated to decide whether the state’s constitution protects abortion rights. If the state Supreme Court judges adhere to what most legal scholars consider strong legal precedent indicating the state constitution does protect abortion rights under its 1980 privacy amendment, Florida’s 15-week abortion limit that took effect July 5 could be blocked, and the state would revert to its former 24-week limit.
But political analysts say the court is unlikely to overturn the 15-week ban, since DeSantis appointed four of the seven justices. Still, Florida’s constitution and 10 others — Alaska, Arizona, California, Iowa, Kansas, Massachusetts, Minnesota, Montana, New Jersey and New Mexico — contain provisions that protect the right to abortion, according to the Center for Reproductive Rights, a New York-based legal advocacy group that supports abortion rights.
In early June, Planned Parenthood and individual abortion providers in Florida sued the state in circuit court, arguing that its 15-week abortion ban violated the 1980 amendment. In 1989, the state Supreme Court cited the clause when it struck down a law requiring a pregnant minor to get the consent of a parent before receiving an abortion.
A 2012 ballot measure that would have removed the privacy amendment and would have approved a ban on state funding for abortion was defeated by 55% of voters.
Mary Ziegler, a law professor at the University of California Davis who recently taught at Florida State University, said abortion-rights voters in Florida and other states will need to pay closer attention than they have in the past to down-ballot political offices such as sheriffs, judges and prosecutors when they go to the polls in November if they want to start seeing improvements in abortion access in their states.
“State legislatures and state courts have been underappreciated for a long time,” she said. “In the past, people who thought about abortion as an issue probably loosely thought Congress or the Supreme Court were all that mattered. State judges were not on their radar. Now they need to be.”
North Carolina’s Legislature
As in Florida, the November elections will determine the fate of abortion access in North Carolina, but the governor is a term-limited Democrat who will remain in office until 2024; state lawmaker elections are what will make the difference, said Christopher Cooper, a political science professor at Western Carolina University in Asheville.
“The future of abortion rights in North Carolina rests firmly in the hands of the General Assembly and the question of whether they gain a veto-proof supermajority when voters go to the polls in November,” he said. Also critical are elections of two open state Supreme Court seats held by Democrats, which could flip the court’s 4-to-3 majority from Democratic to Republican.
If Republicans regain the supermajority they lost in 2018, it is not clear what new laws they would propose. Republican state Senate Leader Phil Berger told local television station WRAL News in an interview last week that he believes abortion laws should include an exception for rape and incest and that there “likely should be a period of the post-conception the mother should have some autonomy in terms of what takes place.”
Cooper said that if Republicans don’t regain a supermajority, “my guess is they won’t put forward any restrictive abortion bills because they know the governor will use his veto pen, and it wouldn’t be worth the political fallout.”
A poll conducted by WRAL in early June found that 45% of North Carolina residents surveyed didn’t think Roe should be overturned, and 30% said it should be. The poll also found that 35% of respondents thought North Carolina’s abortion laws should be left alone, while 29% said they should become less restrictive.
When the U.S. Supreme Court overturned Roe in late June, North Carolina’s Republican legislative leaders called on Democratic Attorney General Josh Stein to ask a federal court to allow a 1973 statute limiting abortions to 20 weeks of pregnancy to take effect.
Last week, Stein issued a statement saying he would not take any action that would restrict “women’s ability to make their own reproductive health care decisions.”
On July 6, North Carolina Democratic Gov. Roy Cooper signed an executive order protecting abortion providers and patients from other states who already are flooding into North Carolina to seek abortions. The order calls on police to step up protection of abortion clinics, prohibits extradition of anyone seeking or providing abortions in North Carolina and bans state agencies from cooperating in investigations of abortion patients or providers initiated by other states.
Although North Carolina allows abortions up to viability, it is one of only a few states that requires patients to wait 72 hours to receive an abortion after an initial consultation and to see an ultrasound of the fetus before the procedure.
Access to medication abortions in North Carolina also is more limited than in many other states, requiring patients to see a doctor in person before receiving pills. And medical and building regulations make abortion clinics expensive to operate in the state, said Elizabeth Nash, principal policy associate at the Guttmacher Institute, a research organization that supports abortion rights.
With a population of 10.4 million and only 14 clinics, North Carolina has limited capacity to serve its own population, much less thousands of out-of-state abortion patients, Nash said.
But for people who live in bordering states and can’t afford to fly to any of the 16 states or the District of Columbia that ensure a right to abortion, driving to North Carolina may be their only option, she said.
Already, Planned Parenthood of North Carolina reported that one-third of the patients currently on its schedule are from nearby states with abortion bans. The organization projects that 10,000 people will travel to the state to receive an abortion this year.
“Relative to other states in the South, North Carolina is more progressive in many policy aspects, including abortion,” said Rebecca Kreitzer, an associate professor of public policy at the University of North Carolina at Chapel Hill.
“But most people are aware of how narrow the margin is,” she said. “So, Democrats are in a defensive mode for now and Republicans aren’t being specific about what new abortion restrictions they want to enact.”
–Christine Vestal, Stateline