On June 8, 2017, Delaware’s Democratic governor, John C. Carney, Jr, signed into law the first state abortion rights bill since the conclusion of the presidential campaign during which candidate Trump called for the abolition of Roe v Wade. Designed to ensure the legality of abortion in Delaware in the event that the landmark ruling is overturned by a reconstituted Supreme Court, Senate Bill 5 (SB 5) expunges a long-standing if unenforceable state abortion ban dating back to 1953.
In addition, SB 5 codifies the provisions of Roe v Wade into state law, thereby permitting “the termination of a pregnancy prior to viability,” defined as “the point in a pregnancy when, in a physician’s good faith medical judgment…there is a reasonable likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.”
The public reactions to the enactment of the bill were predictably divided. “We applaud Governor Carney for sending a strong message that state policymakers will protect women's access to critical reproductive health services in the face of threats at the federal level,” said Amanda Allen, senior state legislative counsel at the Center for Reproductive Rights, according to a report by Reuters. Moira Sheridan, spokeswoman for Delaware Right to Life said that the law “is a tragedy for Delaware,” and that Gov Carney “ignored the voices of Delawareans who rallied in opposition to this legislation, which now makes us the First State for Unrestricted Abortion.”
Delaware state senator Bryan Townsend (D, 11th District), who proposed the bill, told his Senate colleagues that SB 5 “simply seeks to codify the framework in place for a very long time—that a woman has a right to choose.” After 7 rounds of voting, the senate passed the bill on May 9, voting 11 to 7 along party lines. The House voted 22 to 16, also along party lines, to approve measure on June 6. Both houses are controlled by Democrats.
The campaign to ensure that abortion remains legal in Delaware had been gearing up for some time. One abortion rights advocacy coalition, She Decides Delaware, comprised diverse national and local organizations, including Planned Parenthood and the American Civil Liberties Union (ACLU). Further support for an abortion rights bill was offered by a coalition of Jewish, Episcopal, Methodist, Presbyterian, and Unitarian clergy who publicly declared “acceptance” of abortion.
In turn, a coalition of opponents of abortion rights lobbied against the bill. Delaware Right to Life spokeswoman Moira Sheridan said that Delaware is liable to become “a late-term abortion haven” and that “You can codify abortion all you want but you are still codifying the murder of an unborn child.” Responding to the report of support of the bill by the group of clergy, W. Francis Malooly, Bishop of the Diocese of Wilmington voiced his opposition to the legislation. “For decades, the Catholic Bishops of the United States have been advocating for health care access for all,” he wrote. “We believe that stopping the beating heart of an unborn son or daughter of God is not health care.”
The passage of the Delaware bill reduces the number of states that have retained unenforced bans on abortion (that were in place before Roe v Wade), from 11 to 10. Among those states, only New Mexico has recently seen the introduction of an abortion rights bill with an eye toward replacing its 1968 abortion ban. As it stands, failure to progress to a vote has heretofore doomed this effort.
Efforts to bolster abortion rights in other states are struggling, as well. Illinois, 1 of 8 states with laws declaring the state’s intent to ban abortion to the extent permitted by the US Constitution, passed a bill in May that requires the state to cover abortion services through Medicaid and state-employee health insurance. However, the state’s Republican Governor, Bruce V. Rauner, had said he would veto the legislation if it was passed. In Connecticut, 1 of 7 states featuring statutory “right-to-choose” resolutions, legislators sought but failed to pass an abortion rights bill. A similar abortion rights bill has recently cleared the New York Assembly but has yet to be considered by the state Senate. A comparable Rhode Island initiative is being held for further study.
There is no certainty that Roe v Wade will be overturned in the near term or in the future. If nothing else, a more conservative mix than is presently at work in the Supreme Court will be required. In addition, an appropriate case would have to present itself if a 44-year-old precedent is to be successfully revised or rejected.
Still, a partial or complete reversal of the landmark 1973 ruling cannot be ruled out. On those grounds alone, not to mention the Delaware experience, there is every reason to believe that state efforts to counter a potential undoing of Roe v Wade will continue unabated. With several states already in play, others are certain to follow. A national movement replete with a blueprint has been launched.
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Eli Y. Adashi, MD, MS Eli Y. Adashi, MD, MS, is Professor of Medical Science and the former Dean of Medicine and Biological Sciences at Brown University in Providence, Rhode Island. A member of the National Academy of Medicine, the Association of American Physicians, and...