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The state of abortion litigation

Emily Bazelon surveys the landscape.

You’ve seen Texas legislator Wendy Davis in her pink sneakers and shuddered over the murder trial of baby killer Kermit Gosnell. Meanwhile, various states are passing increasingly extreme abortion restrictions. But with bill after bill, it’s hard to keep track and easy to get swept up in the outrage. What’s the bigger picture here, and which of these laws have a real shot at being upheld in court? After all, while the wave of legislation comes out of a deep and abiding rift, a lot of it is also political theater—of use to both sides. Let’s go from least to most plausible—from the laws that are largely symbolic to the ones that keep pro-choice lawyers up at night.


The 2010 elections, which put more Republicans in control of statehouses across the country, invigorated abortion opponents and gave them the chance to try new bills. In 2011 and 2012, 135 abortion restrictions passed in the states—the biggest wave ever. And it’s still cresting, with 43 additional restrictions so far this year. The Gosnell trial, with its spectacle of a lawbreaking doctor killing living babies, has motivated anti-abortion legislators. And groups like Americans United for Life have spurred action by drafting model bills that states can use as a blueprint. Once one legislature has a law in its sights, the pressure is on for other conservative lawmakers to prove to their base that their commitment is just as strong.

How much is all this affecting women who seek abortions? And if you’re pro-choice, how worried should you be? If you live in a state with a TRAP law that has teeth, clinics may well be shutting down. If there’s a telemedicine ban in effect and you live out in the country, you probably have to drive to a city now to take the pills you need. The overarching point is this: In many red states, abortion is truly becoming less accessible. But as significant as these new laws are, no state has yet succeeded in winning the race to be the first without a clinic. The courts still stand between the legislature and the patient. And for the most part, they are on her side.

Read the whole thing. There’s hope for preventing most if not all of the awful things in the omnibus anti-abortion bill from taking effect, but there’s no guarantees. All of this is certain to allow for eventual Supreme Court review, and who knows what can happen there. The 2010 elections will be with us for a long time.

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  1. […] a reminder, here’s an overview of current abortion litigation. Obviously, winning elections is the only real way to change things, […]