For two decades, abortion rights opponents have drafted so-called model legislation and lobbied to get the measures to restrict and ban abortions passed in statehouses across the country in preparation for the eventual fall of Roe v. Wade.
The model legislation and concerted political pressure from national organizations that oppose abortion rights resulted in key terms being cemented into laws, the limitation of abortion access and the influence behind the trigger laws that will go into effect in 13 states this summer as a result of the Supreme Court's recent decision to overturn Roe.
Leading the pack in crafting anti-abortion legislation are Americans United for Life and the National Right to Life Committee, that provide model bill services, legal counsel and advocacy efforts for the anti-abortion movement, including the drafting of abortion-limiting and -banning bills.
"Building on the momentum from last year, two states, Idaho and Utah, passed conditional bills similar to AUL's model bill, which would ban abortion in the event that Roe v. Wade was overturned or lawmaking authority was otherwise handed back to the states," touts AUL's 2020 state legislative sessions report.
Over the last several decades, the two groups have worked toward increasing abortion restrictions nationwide, ultimately leading to abortion bans in some states, said Elizabeth Nash, state policy analyst for the Guttmacher Institute, a think tank that supports abortion rights.
"What the national groups have been able to do is essentially craft this language on restrictions and bans and they have the networks to spread it across the country in all of these state legislatures. So you do see these very similar bills just moving very quickly and that has given momentum to restrictions," Nash said. "So we saw these legislatures adopting restriction after restriction and that moved states to then start thinking about abortion bans because most of these states had adopted pretty much every restriction in the book."
This legislative pattern occurred as the makeup of the Supreme Court became more conservative.
"Little by little with this incremental approach, we've been able to strip Roe of its origin," said Ingrid Duran, director of the Department of State Legislation at the National Right to Life Committee. "That's why after all of these election cycles and different political appointments, it was very easy to see the demise of Roe."
The two national groups, according to Nash, have largely focused their efforts on restrictions on abortion that could be immediately enacted with few legal challenges. Total bans, were the court to overturn Roe, were more symbolic.
"It originally appeared to be a way for state legislatures to basically announce their intent that they supported abortion bans," Nash said. "But because the effective date was in the future, it was also not possible to challenge the bans because they weren't going into effect."
Over the past several decades, the National Right to Life Committee has succeeded in getting its model legislation drafts enacted across the country. One example is its draft of the "Pain Capable Unborn Child Act," which makes it illegal to perform abortions after 20 weeks, the point at which advocates claim a fetus can feel pain. National Right to Life's version of the bill has been enacted in 16 states, according to Duran, though it has been legally blocked in Idaho.
Beginning in 2016, 13 states have passed NRLC's model legislation of the Unborn Child Protection from Dismemberment Abortion Act, which all include the same definition of "dismemberment." Kentucky used the same model but adopted its own "dismemberment" definition. Many of these laws were paused by legal disputes.
Also during the Trump years, abortion rights supporters say they began to notice terms like "unborn child" as opposed to "fetus" or "embryo" in legislation text that was ultimately signed into law; the term is included in 12 of the 13 trigger laws.
The use of antiabortion model legislation is not new. In 2019, an investigation from USA Today and the Arizona Republic found AUL was the top group to write legislation limiting abortion access that was introduced and passed in statehouses nationwide.
The two organizations have also served as resources for local organizations looking to craft bills. For example, Louisiana's trigger law is not necessarily based on any one model but Louisiana Right to Life uses legal counsel and advice from the national organization, NRLC.
Supreme Court influenced the influencers
Duran said that when drafting model legislation, much of it was aimed at former Justice Anthony Kennedy, who retired in 2018, because he was perceived as the swing vote on the court.
"We were looking at what brand new question could we ask the Supreme Court. And at that time if we're looking at a Kennedy court...we were like, well, let's ask a different question," Duran said, adding that the group had a legislation strategy that focused on pain-based arguments in case of a larger lawsuit. Bills like the Pain Capable Unborn Child Act were assumed to get more support from Kennedy than stricter bans.
The 13 trigger laws expected to go into effect in coming weeks were all passed by their respective legislatures during two periods: between 2005 and 2007, during the Bush administration, and between 2019 and 2021, during the Trump administration. During both, the Supreme Court gained additional conservative justices.
"It really just depends on the political climate. It depends on what can you get passed and also the legislative strategy," Duran said, noting that in the past two decades some states opted for measures that limited access while others chose to pursue trigger laws.
Former President Donald Trump campaigned and fulfilled his promise of appointing additional justices and judges who opposed abortion rights.
Nash said the two most recent waves of abortion bans happened following the appointments of Justices Brett Kavanaugh, in time for states' 2019 legislative sessions, and Amy Coney Barrett, in time for the 2021 legislative sessions.
"Our strategy was to put more protective language out there to see what can we do and whether it is trying different pieces of legislation like antidiscrimination abortion bills, trying to protect unborn children even earlier in pregnancy," Duran said. "It allowed us to become a little bolder in our ask when we had a more friendlier court...It allowed us to get a little more creative with our laws and seeing just how far can we go to effectively protect unborn children."
Moving forward: Local influence reigns
But each of the trigger laws is not necessarily based on a copy-and-paste format of a model bill written by the national groups, with local groups that oppose abortion rights and affiliate with the national organizations having heavier influence.
During the first wave of abortion bans between 2005 and 2007, Nash said, legislation was mainly spearheaded by local grassroots efforts. During the consequent wave of bans in 2019 and after, local affiliates continued pressing forward.
"On the one hand, it does mean that what you see coming from states isn't necessarily coming from voters in those states, but it is coming more from anti-abortion groups in those states versus nationally. So each law is more tailored to the conditions in the state," said Mary Ziegler, legal historian and law professor at Florida State University. On the other hand, she noted, the national nature of the movement resulted in more moderated measures. "There was sort of things that even though the movement's agenda was pretty much the same, there were things that weren't said or done because it was viewed as sort of jeopardizing the bigger plan."
Such provisions could include any law that wouldn't stand against a legal dispute nationally.
"It's a free-for-all one because before there was much more coordination. Americans United for Life and National Right to Life Committee basically coordinated everything," Ziegler said. "You would know which groups to look at and why. And now I think it isn't that way. So which groups are going to dictate? The strategy may depend on the state."
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