Justice Anthony Kennedy’s retirement has put the subject of abortion rights at the center of America’s political conversation once again. Soon after Kennedy announced his decision to step down, CNN’s Jeffrey Toobin predicted that Roe v. Wade would be overturned, paving the way for abortion to become illegal in 20 states in the next 18 months. Many other court-watchers have been decidedly more skeptical because recent anti-abortion legal strategy has shifted away from frontal attacks on the landmark 1973 decision. For the most part, though, people in and around Washington have treated the question as a somewhat distant one. After all, the District and Maryland are famously liberal jurisdictions, and Virginia has been trending that way. Removing the federal guarantee of abortion rights doesn’t mean states can’t continue to protect access. But is it that simple? We asked law- and politics-watchers to walk us through a hypothetical of what things might look like locally in an alternative future where Roe was repealed.
Some states have “trigger laws” that will outlaw abortion the second Roe falls. Will that happen in in DC, Maryland or Virginia?
Nope. None of these jurisdictions have a trigger law or a constitutional amendment that undermines the right to abortion (like Tennessee and, after November, maybe West Virginia and Alabama). In fact, in DC, the 1901 law that criminalized abortion was repealed in 2003 along with a host of other outdated statues. And Maryland law specifically protects abortion rights.
Is there any chance a DC Council would outlaw or restrict abortion?
Almost none. The council is overwhelmingly progressive, often to the chagrin of Congress—and the few Republican councilmembers over the years (there are none on the current council) have been social liberals, too. Plus, last year, six councilmembers introduced a bill that would make health-care workers protected from discrimination based on their support for abortion rights and access.
What about Congress? Can’t it simply dictate a ban?
The Constitution grants Congress “full legislative authority” over the District. But in reality, it’s extremely unlikely. For one thing, it’d have to pass both chambers, and would be subject to a Democratic filibuster in the Senate. And for the last two decades, Congress has mostly sought to influence the city via the budget process rather than out-and-out legislation. A 20-week DC abortion ban introduced by Arizona Representative Trent Franks in 2012 didn’t even get out of committee.
But what about that budget process? Congress can use that to impose policy on the District, right?
Right. Since DC budgets are passed in Congress’ yearly appropriations bills, those bills sometimes carry riders that dictate what the District can and cannot do with their money. (There are currently a number of them looming, including one to repeal DC’s assisted suicide law and another to block funding for a 2014 act that protects women from discrimination based on their reproductive health decisions.) Those riders usually try to stop something that’s being proposed—as when Georgia Representative Bob Barr famously authored a spending bill amendment that both prevented DC from implementing a 1998 a referendum legalizing medical marijuana and sealed the results of the vote. (Months later, residents learned it passed by 69 percent, but to no avail: the Barr Amendment stayed in place for 11 years. But while riders have frustrated locals for years, DC Representative Eleanor Holmes Norton has lately had fairly good luck holding up the efforts despite her status as a non-voting member of the minority.
Wait, why does this budget stuff still matter? Didn’t 83 percent of Washingtonians vote in a referendum to control local revenues?
Yeah, about that… The referendum to amend the Home Rule Act of 1973, which lays out the city-Congress relationship, passed overwhelmingly, but the legality of the amendment has remained controversial ever since. The change was blocked in federal court in 2014, but a judge upheld it in March 2016. The House has tried to repeal it with riders in each budget bill, but it hasn’t happened yet, partially thanks to Congresswoman Norton. They’re trying it again in the 2019 bill, too. For now, the city acts like the budget amendment is valid, and Congress acts like it’s not. That means each year it gives the city permission to spend its local money just like it did before.
What would the DC Council do if Congress threatened to hold up the budget unless DC banned abortion? A held-up budget could paralyze the city, after all.
Paralyze is probably the wrong word. Though DC’s budget must be approved by Congress, local tax dollars are already in the city’s coffers, and crucial services like police continue. General government services, on the other hand, are vulnerable. Still, this used to be such a big problem that during the 2013 federal shutdown, Mayor Vince Gray declared all city employees “essential” so they could keep working and paid them out of the city’s cash reserves. After that, federal spending bills have included a clause that lets DC keep using the previous year’s budget during a shutdown. During the January shutdown, Mayor Muriel Bowser said the city was open for business, though it was short enough that no one missed a check.
Of course, if a determined Congress was able to overcome the local pols and really nix the budget unless the District agreed to an abortion ban, it could be a political nightmare for whoever pushed it—images of the capital city’s government idled over a social-policy crusade might not play well back home. This is a very unlikely scenario.
What about the Democrats in Congress? Can locals count on them going to the mat for DC abortion rights?
You’d think so, but history suggests we shouldn’t be so confident. In a 2011 budget deal, Barack Obama traded away public funding for abortion—with DC’s own local tax dollars, not federal money—as part of a deal with Republican House Speaker John Boehner. But in a hypothetical future world without Roe, fighting for abortion rights could become a major Democratic coalition-builder and a winning issue rather than an obscure sidebar likr the 2011 abortion-funding flap.
How about Maryland? It’s liberal like DC, but not under the heel of Congress.
Yep. It’s almost impossible to imagine the Maryland legislature outright banning abortion, especially since it passed a law protecting the right less than 30 years ago. That statue prohibits the state from interfering with abortion up to viability. Even after that point, late-term abortions are legal to preserve maternal health or in cases of fetal defects. Maryland is reliably blue, and Democrats have a strong hold on the state legislature.
Yes, it’s very Democratic. But is there a significant number of Democrats who aren’t pro-choice?
While there are pro-life Democrats, they are few and far between. In the 2018 legislative session, the four pro-life bills introduced only gathered one Democratic sponsor—Delegate David Chang, who added his name to the House version of the “Unborn Child Protection From Dismemberment Abortion Act.” Its Senate companion had no Democratic cosponsors, and neither made it to the floor.
What about Republican Governor Larry Hogan? Is he pro-life?
Not in a politically impactful way. In the early ’80s, Hogan made some pro-life comments, but by the ’90s, he agreed abortion should be legal. Despite his personal beliefs, even NARAL calls Hogan “mixed-choice.”
How politically suicidal would a move to block abortion be?
Extremely. Hogan’s hold over Democratic Maryland is made possible by his sticking to his winning issues, like taxes and business. He’s stayed away from social issues for good reason. A step into contentious waters could easily drown him or any plausible successor.
But he won’t always be governor. It’s unlikely, but what if someone with more strident views came to power in Annapolis? Is there anything that person could do to force the issue without legislation? Like, via appointments to state medical boards or other regulatory stuff?
According to the Maryland constitution, the governor’s “civil and military” appointments have to be approved by the Maryland Senate. These include the heads of boards like the Maryland Commission for Women and State Board of Physicians.
What about counties? We know Maryland’s biggest counties are liberal, but there are plenty of others on the Eastern Shore and in Appalachia. Would current Maryland law allow a county to outlaw abortion?
Nope. Maryland’s law, as we said above, makes it clear that abortion rights are protected in the state. Plus, Maryland is a Dillon Rule state, meaning municipalities have only the powers expressly granted by their states. A local government could put up zoning hurdles for an abortion clinics that wanted to set up shop within their boundaries, but a prohibition would be illegal.
What would this do to state politics? If abortion were an issue in state legislative races, how would that change the calculations for the parties?
It would almost certainly be a winning issue for Democrats. When Republicans have won in Maryland, like in the 2014 gubernatorial election, they’ve run on meat-and-potatoes issues. Having to defend an unpopular social position that in a post-Roe world might plausibly become law would make it harder to keep the focus on those issues.
Well, is there any chance the Virginia legislature would outlaw abortion?
Potentially, though it’s becoming less likely as Virginia trends blue. The GOP currently controls the legislature, and almost its entire caucus is pro-life. But even if the slim Republican majority managed to pass a bill, the current governor would certainly veto it—with no danger of an override. In the current political context, the embattled state GOP might think twice about angering voters by passing such a bill in the first place.
So Governor Northam would definitely veto a ban?
Almost definitely. Northam, a doctor, ran on his pro-choice record and medical expertise. However, Virginia governors can only serve one term, and Northam’s time is up in 2021.
Leaving aside the current makeup of the legislature, we know it’s swung back and forth. Could a future legislature have more of a social conservative bent?
Absolutely. Though Virginia hasn’t elected a statewide Republican since 2009, the legislature has been Republican-led. Legislative fortunes have often been tied to the popularity of the president, and Donald Trump has never been popular in Virginia. Not only did he lose convincingly to Hillary Clinton, he scarcely beat Marco Rubio in the primary. On the other hand, he won’t always be president.
Does the Virginia legislature have a filibuster? Would there be any way for a minority to scuttle pro-life legislation?
It doesn’t have a filibuster. So if pro-choice pols found themselves outnumbered ahead of some hypothetical future vote, they’d have to stop the legislation via good old-fashioned campaigning to flip votes.
What about future governors? Virginia has elected social conservatives plenty of times.
It’s true. Former governor Bob McDonnell was a favorite of evangelicals. 2013 GOP nominee Ken Cuccinnelli was a confirmed social-policy warrior and came rather close to winning. Virginia’s next gubernatorial election occurs a year after the 2020 presidential election, and either party could use the results to galvanize its base.
If abortion became an issue for states to decide, how would this change statewide politics in Virginia, where voters have been willing to elect both parties? Would suburban Republican elected officials have a harder time winning if the issue of abortion rights became part of local campaigns?
In a recent poll, 64 percent of Virginians surveyed thought abortion should be legal in most or all cases. That number included 40 percent of Republicans. So, on balance, if a future court ruling gave state legislatures the power to ban abortion, the average GOP candidate running for a state legislative seat would probably rather talk about traffic or policing—and the average Democrat would use the issue to disqualify their Republican opponent. But it’s a big state, so the impact would be diverse: What plays one way in a local Fairfax County race would play differently a couple hundred miles to the south.