Supreme Court Pick Matters To State Lawmakers, Too. Especially On Abortion

September 4, 2018

Confirmation hearings begin this week for Supreme Court nominee Judge Brett Kavanaugh.

One issue state lawmakers may find most significant is reproductive rights and how Kavanaugh responds to questions regarding Roe v. Wade, the 1973 ruling that gave women the constitutional right to choose abortion.

Maine Republican Sen. Susan Collins says Kavanaugh told her that he views the landmark abortion rights ruling as “settled law.”

But exactly what that means is up for interpretation, and an overturning, or weakening, of Roe could give states first say in how to regulate abortion.

A snapshot of today’s state abortion laws may be the best indicator for what states could do in a post-Roe world. Kansas, for instance, has passed some of the most restrictive abortion laws in the country. On the other hand, some lawmakers in Massachusetts see the state as a place for women seeking services to come from abortion-restrictive states.

Kansas’ transformation into an abortion-restrictive state

Thirty years ago, abortion wasn’t hard to access in Kansas. The state legalized it in 1969 alongside a wave of others.

Today, the situation looks a lot different. Kansas has laws that impose a 24-hour waiting period for abortions, require parental consent, mandate an ultrasound, and restrict insurance providers in the state from covering most abortions. And it all goes back to the summer of 1991.

That’s when Dr. George Tiller’s medical clinic in Wichita, Kan., caught the attention of an anti-abortion protest group called Operation Rescue.

Tiller was one of several of doctors nationwide performing third-trimester abortions, work that made him a lightning rod (and 18 years later, would lead to his assassination by an anti-abortion activist).

The summer of 1991, the group bused protesters in from around the country. And for nearly two months, from morning to night, thousands gathered at the clinics, linking arms and singing, praying, chanting, trying everything they could to keep women from getting abortions.

But behind the scenes, some protesters were already making plans to translate their action into long-term political change.

“Every night they would have rallies back at the Wichita Plaza Hotel,” says Judy Thomas, a reporter who was at the Wichita Eagle in 1991 and has since co-authored a book on abortion called Wrath of Angels.

“At the back of the room they had long tables back there, and they were signing people up to run for precinct committee positions.” In other words, low-level elected office.

“They were ready to come out with the pitchforks,” says Mark Gietzen, who was a regular at the hotel rallies. “But it’s much smarter and wiser to do it within the law.” During the day he was out at the protests with his three-ring binder, signing up anti-abortion protesters to get involved in government.

The next year, 1992, moderate Republicans started losing their seats to more conservative, anti-abortion challengers running for the state Legislature.

“You really started to see anti-choice laws come into play in like ’92, ’93. We’ve seen a mountain of them since,” says Julie Burkhart, who worked at one of the clinics targeted in the summer of 1991. Today she runs a clinic on the site of Tiller’s old practice, one of two such clinics in the state that perform abortions.

Burkhart and other abortion-rights activists say they tried to stem the tide but were outflanked by anti-abortion groups who were thinking ahead, building off the seeds of those 1991 precinct captains.

“You talk about grass roots; I mean, we had true grass roots,” says Mary Kay Culp, who heads the anti-abortion group Kansans for Life and says it wasn’t until she had her own baby that she became an activist.

“When abortion became legal in the state in 1969, that’s the year I graduated from high school, so I knew a few girls that had had abortions that first year. I saw what it did to them mentally, spiritually, just, you know, everything.”

Her organization has been working hard on winning races for statewide office and legislative victories. But right now, the future of abortion in Kansas rests with the courts. Kansans are awaiting a decision from the state Supreme Court on whether the state constitution guarantees a right to abortion.

“If they find that there is this ‘right to abortion’ in our state constitution, we could lose every single one of the laws we’ve passed that have cut abortions in half here,” says Culp.

And an overturning of Roe v. Wade at the federal level could mean that Kansas, and other abortion-restrictive states like it, could tighten laws until the practice is outlawed altogether.

Massachusetts as a place for women seeking abortion

Meanwhile, lawmakers in Massachusetts and legions of activists are taking steps to secure, even expand access to abortion. Republican Gov. Charlie Baker signed a bill earlier this summer repealing a mid-19th-century abortion ban that was likely unenforceable but still around.

“Given the context at the federal level and the ongoing intensity of the debate about some of these issues in D.C., we simply felt that we should just clean up the state’s books,” said Baker.

The focus in the state now is on easing parental consent rules and making pills that trigger an abortion available under the supervision of a doctor, midwife or nurse practitioner.

Rebecca Hart Holder, who runs the group NARAL Pro-Choice Massachusetts, says these changes will benefit women in Massachusetts and could make the state a destination for women from states like Kansas with abortion restrictions.

“We are making an assumption that if women can travel that they will come here for safe care,” she says. “I do think it’s a fair thing for us to be thinking about with the specter of Judge Kavanaugh looming over us right now.”

The president of Massachusetts Citizens for Life, Anne Fox, dismisses the flurry of activity at the state capital as a lot of political theater.

“It’s part of the effort to gin up all the work that’s going on against Judge Kavanaugh. When you scare people, that’s the best way to get them to do something.”

Fox is right: Fear about losing access to abortion is fueling phone banks and letter writing campaigns and compelling some people to tell painful stories like the one belonging to Karen and Robbie Silverman.

At 8 o’clock on a summer morning just about a year ago, the Silvermans arrived at Newton Wellesley Hospital just outside Boston for a 20-week checkup.

“We were pregnant with our third child. We were expecting a little boy and blissfully ignorant that everything was fine.”

Until the ultrasound showed major heart defects that would require a series of high-risk surgeries beginning immediately after birth — and eventual heart, liver and kidney transplants. The Silvermans say they consulted teams of doctors at two different hospitals. Karen Silverman says all the diagrams and studies made the decision clear.

“It just felt so obviously right to me of what the kind, compassionate, loving thing to do for him was,” she says, “to not have him go through this very short life full of suffering with no real joy or happiness.”

The Silvermans did not need special permission for a 20-week, second-trimester abortion in Massachusetts, for which Robbie Silverman says he is grateful.

“We absolutely understand that there are people who are in our situation would make a very different choice. I don’t think we question anyone’s personal morality or the personal decisions they would make, and we would ask that they not question ours.”

But the Silvermans do hope their story will help secure access to abortion in Massachusetts and across the country.


Madeline Fox is a reporter for the Kansas News Service and Martha Bebinger is a reporter for WBUR in Boston.

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