An aggressive push by Republicans to pass hard-line anti-abortion measures is faltering in some state legislatures and on Capitol Hill, the latest indication that many Americans are balking at extreme restrictions being imposed since the fall of Roe v. Wade.
In South Carolina, Republicans failed to pass a near-total abortion ban during an extended legislative session Thursday night, unable to agree on whether to include exceptions for rape and incest. In West Virginia, a recent special session over similar legislation ended in gridlock.
At the same time, efforts to advance a strict nationwide ban in Congress have quietly fizzled. After pushing for a national “heartbeat ban” on abortion in the spring — which would have outlawed the procedure as soon as cardiac activity is detected, around six weeks of pregnancy — Republican lawmakers and some anti-abortion advocates have retreated from the idea. Some legislators are now pushing for a 15-week ban; others have abandoned any kind of national abortion legislation.
“We are not elected as kings or dictators. We’re elected to serve the will of people,” said West Virginia state Sen. Tom Takubo (R), who refused to support a near-total ban without rape and incest exceptions. “Even in the most rural and conservative parts of West Virginia, I still believe the majority thinks there should be exemptions for rape and incest.”
Sixty-nine percent of Americans, including 56 percent of Republicans, said abortion should be legal when the pregnancy resulted from rape, according to a March Pew Research Poll.
The Supreme Court’s June decision to overturn the constitutional right to abortion immediately triggered strict abortion bans in states across the South and Midwest, cutting off abortion access for 1 in 3 women across the country. Even so, many anti-abortion advocates saw an opportunity to go further. In state legislatures, activists teamed up with conservative lawmakers to lobby for extreme restrictions, including bans without exceptions for rape and incest, and legislation that would stop people from seeking abortion care across state lines.
But lawmakers have been forced to reckon with a growing public backlash. Last month, voters overwhelmingly rejected an anti-abortion amendment in Kansas that would have removed abortion protections from the state constitution. And Democrats who support abortion rights have won recent special elections in moderate districts, outperforming expectations.
“They saw what happened in Kansas,” said Mary Ziegler, a University of California at Davis law professor who specializes in abortion. “You have people from certain parts of South Carolina who are gun shy about this — and they have reason to be.”
In South Carolina this week, a ban from fertilization without exceptions for victims of rape or incest had support from 24 out of 30 GOP senators, including party leadership, but a small group of Republicans spent hours on Wednesday and Thursday trying to persuade their colleagues to soften the bill’s language. Eventually, the Republicans championing a near-total ban abandoned the most restrictive proposals because they could not gather enough votes to pass them.
“People are very divided,” state Sen. Penry Gustafson (R) said.
In the days leading up to Thursday’s vote, the senator said she was inundated with calls and emails from South Carolinians weighing in on the bill from all sides. Gustafson, who did not support a ban without exceptions for rape or incest, said she had to balance the views of her deeply conservative constituency with the opinions of residents in other parts of the state that would be affected by the bill, especially women.
“You’ve got to know your people and who you’re representing,” said Gustafson, who ultimately supported a bill that largely mirrors the state’s six-week ban. “My vote directly reflects the will of my people.”
South Carolina state Sen. Tom Davis (R), who opposed the near-total ban without exceptions, said that he expects abortion to be a major issue for voters in November.
“We’re not just hearing from folks who feel passionately on the extremes … we’re hearing from a lot of people who are somewhere in the middle,” Davis said. “Where it comes down remains to be seen at the polls.”
While the near-total ban failed, South Carolina lawmakers were successful in pushing through an amended bill that would severely restrict access. That measure — a version of one already on the books but blocked by the courts — bans abortion after six weeks and limits rape and incest exceptions to the first trimester, requires a second doctor’s opinion in cases where a fetus is diagnosed with a lethal anomaly, and mandates that doctors who perform abortions in instances of rape or incest send a fetal DNA sample to police. The legislation moves to the state House, which could consider it as early as next week.
A similar dynamic played out in late July in West Virginia, where Republican lawmakers introduced a near-total abortion ban with no exceptions for rape or incest as soon as they convened for a special session.
A version of that bill had been widely expected to pass until two physicians who serve in the state Senate — Takubo and Sen. Michael Maroney (R) — pushed for an amendment that would have removed criminal penalties for doctors. Others introduced an amendment to broaden the bill’s exceptions.
The West Virginia legislature disbanded for the month of August, after failing to agree on a version of the bill to move forward. Lawmakers have since been called back to the Capitol, where debate on anti-abortion legislation will resume next week.
On Capitol Hill, Sen. Joni Ernst (R-Iowa) had been planning behind the scenes to introduce a “heartbeat” ban in the Senate after the Supreme Court decision, lending the gravitas of one of the GOP’s most prominent female stars to legislation that would have banned the procedure nationwide before many people know they’re pregnant.
Although that bill has been drafted, there is no timeline for Ernst or any other senator to introduce it, according to several anti-abortion advocates close to the situation. Ernst did not respond to multiple requests for comment.
Sen. Steve Daines (R-Mont.), founder and chair of the Senate Pro-Life Caucus, said he hasn’t had conversations with lawmakers about introducing a heartbeat-style bill in the chamber since the Supreme Court decision.
Instead, some anti-abortion advocates are hopeful that Republican lawmakers will rally around a 15-week ban that Sen. Lindsey O. Graham (R-S.C.) is expected to introduce this fall, a proposal that has long been denounced by many in the anti-abortion movement because it would allow the vast majority of abortions to continue. Spokespeople for Graham didn’t respond to multiple requests for comment.
Some Republican lawmakers have expressed disinterest even in that less-restrictive piece of legislation.
Even before an anti-abortion amendment was resoundingly defeated in his home state, Sen. Roger Marshall (R-Kan.) told The Washington Post that he was not confident there is a future for any kind of national abortion ban.
“I just don’t see the momentum at the federal level,” Marshall said in a July 25 interview, declining a request for a follow-up interview late last month. “I think the legislative priority should be at the states.”
A nationwide ban would be extremely difficult to pass, requiring 60 votes in the Senate to overcome a filibuster. Either proposal under discussion — a ban at either six weeks or 15 — would encounter resistance from nearly all Democrats in addition to a handful of Republicans who support abortion rights. Neither party is likely to gain in the midterm elections the number of seats necessary for a filibuster-proof majority.
Some Republicans have grown increasingly hesitant to discuss the subject of a national abortion ban on the campaign trail. In Arizona, Republican senate candidate Blake Masters removed any mention of his support for a “federal personhood law” from his website, legislation that likely would have banned abortion nationwide after conception. Masters’s website now says he would support a ban on abortions in the third trimester, around 27 weeks of pregnancy, which would affect a vanishingly small percentage of the abortions performed across the country each year.
On the state level, abortion rights advocates say that the delays have provided an unexpected window for abortion access in some of the most conservative states — at least temporarily.
When the West Virginia legislature adjourned in late July without passing a ban, the staff of the state’s only abortion clinic sat in the gallery and cried.
“It meant we could see patients next week,” said clinic director Katie Quinonez, who had been bracing herself to call every patient on the schedule to tell them they had to get their abortions somewhere else.
The Women’s Health Center saw 78 patients for abortion care last month, according to Quinonez, with many coming in from states such as Kentucky and Ohio, where strict bans are in effect.
“We never anticipated being a state receiving abortion patients from states were abortion is illegal,” said Quinonez. “We anticipated being one of those states.”
Before the law changes, she added, “we are focused on seeing as many patients as physically possible.”