After Roe

U.S. Capitol Police officers ride on bicycles as they patrol the front of the U.S. Supreme Court Building on May 09, 2022 (Photo by Anna Moneymaker/Getty Images)

In the coming weeks, Roe v. Wade is expected to be overturned and the constitutional right to abortion will be eliminated. If that happens, 22 states already “have laws on the books that impose very strict restrictions on abortion.” Eighteen of these states have laws that will “ban virtually all abortions” as soon as Roe is overturned, with only some having exceptions for rape, incest, or serious health risks to the mother. Four other states have laws that “would ban abortion after six weeks,” which is before many women even know that they are pregnant. 

These near-total abortion bans are the culmination of decades of work by Republicans. But they are also extremely unpopular. Only 8% of Americans support a total abortion ban and just 37% think abortion should be illegal in "most cases." 

The Republican strategy is to pretend like these abortions bans are not happening. A memo written by the National Republican Senatorial Committee (NRSC) and obtained by Axios says candidates should stress that overturning Roe will simply allow some states to put “reasonable restrictions” on abortions. Republican candidates should depict themselves as "compassionate consensus builders" on abortion. Meanwhile, those that support abortion rights that have existed for decades should be depicted as "extreme and radical." There is no mention of abortion bans.

The memo comes after the publication of a draft Supreme Court opinion by Justice Samuel Alito that would strike down Roe. Alito, who reportedly has the support of a majority of the court, writes that Roe, which has been in place for 48 years, “was egregiously wrong from the start.” 

The reality is that Republican legislators at the state and federal level are not satisfied with the abortion bans already on the books. In anticipation of the overturning of Roe, legislators are pursuing a crackdown on reproductive rights, including restricting access to abortion pills and emergency contraception. In Congress, Republicans are floating a national abortion ban. 

There is a stark contrast between the Republicans talking points on abortion and their legislative agenda. 

Mitch McConnell open to national abortion ban

Republicans are openly discussing imposing a national abortion ban. In an interview with USA Today, Senate Minority Leader Mitch McConnell (R-KY) said a national abortion ban was "possible" and "worthy of debate" if the Supreme Court strikes down Roe. He suggested that most Senate Republicans would support a national ban.

According to the Washington Post, Senator James Lankford (R-OK) said that Republican senators have “discussed at multiple meetings the possibility of banning abortion at around six weeks.” Several national abortion bans have also already been introduced in Congress in recent years. In 2021, Representative Mike Kelly (R-PA) introduced a “six week abortion ban.” and Senator Rand Paul (R-KY) introduced the “Life at Conception Act” which “would recognize a fetus as a person with equal protections under the 14th Amendment.” This legislation was co-sponsored by “[n]ineteen Republican senators and well over 100 Republicans in the House.” 

Passing an abortion ban through the Senate would require either 60 votes or passing an exception to the filibuster rules. McConnell says he does not support a carve out to the filibuster for an abortion ban. But there is nothing preventing McConnell from changing his mind and the next leader of the Republican caucus may feel differently.

Other Republicans are hewing more closely to the advice in the NRSC memo. These Republicans are not ruling out a national abortion ban but are stressing the need for consensus building first. Senator Josh Hawley (R-MO) said a national abortion ban “wouldn’t be my priority out of the gate,” but that he would support Congress acting “where there’s national consensus” after states debate the topic. Senator John Barrasso (R-WY) also supported allowing states to regulate abortion, stating that he “want[ed] to see the states have that opportunity and the authority to do so.” 

The crackdown on pills and telehealth

Undoing Roe could also threaten access to abortion pills, a method that accounts for more than half of U.S. abortions. According to the Guttmacher Institute, “​​medication abortion is likely to become even more critical in the delivery of care to many people” if Roe is overturned.

States have already begun cracking down on access to abortion pills, specifically targeting mail-order. As the name implies, these pills can be ordered online and are mailed to the patient. They have previously served as a workaround for those living in states with abortion bans. 

Just this week, Tennessee Governor Bill Lee (R) signed a law that criminalizes mail-order abortion pills. Under the law, anyone who wants an abortion pill will be required to visit a medical clinician and follow-up with the clinician in-person within two weeks. Anyone who sends abortion pills “via courier, delivery, or mail service” will be fined up to $50,000.

Tennessee is one of 19 states that currently bans the use of telemedicine for abortion. “An additional five to 10 states are expected to limit access to telemedicine abortion if Roe v. Wade is overturned,” Stat News reports. 

But this move conflicts with the Food and Drug Administration’s (FDA) decision to permanently allow abortion pills to be sent by mail. Issued last December, the rule allows patients to get prescribed abortion pills via telehealth appointments. 

Whether a state can continue to restrict access to abortion pills despite the FDA’s rules remains to be settled, according to experts.

“There is no question that the FDA has proper authority to regulate the drugs used in medication abortions,” Law professor Laura Hermer said to AP News. “The question is whether a state can make a viable, winning argument that, for public health purposes, it needs to further regulate access to the relevant medications.”

Republicans consider limits on contraception

Abortion isn’t the only target. Some GOP lawmakers are already beginning to reconsider access to contraceptives. 

Earlier this week, Mississippi Governor Tate Reeves (R) declined to rule out the possibility of banning certain forms of contraception, insisting that it was not “what we are focused on at this time.” Reeves later tweeted “I’m not interested in banning contraceptives.” However, this does not necessarily mean Reeves is committed to protecting access to birth control.

In Louisiana, lawmakers are advancing a bill that classifies abortion as a homicide and grants constitutional rights from the moment of fertilization before implantation. As written, this redefinition of personhood could potentially restrict emergency contraception, IUDs, and IVF, point out experts. 

Meanwhile, in Idaho, a state lawmaker admitted last week “he would hold hearings on legislation banning emergency contraception and abortion pills.” The lawmaker went on to clarify that he does not “support hearings banning contraception generally,” but that he is willing to hold hearings on the safety concerns of emergency contraceptives. 

Previously, Idaho banned public school health clinics from dispensing emergency contraception because it was deemed as an “abortion-related activity.” Experts warn that conflating contraceptives, which prevent pregnancies, with abortifacients, which are substances that terminate pregnancies, is an intentional strategy often used to confuse people and justify restricting birth control.

Despite these efforts, the NRSC memo describes the idea that some Republicans want to restrict contraception as a "Democrat lie."