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Abortion rights activists Carrie McDonald, left, and Soraya Bata react to the Dobbs v. Jackson Women’s Health Organization ruling, which overturned the landmark abortion Roe v. Wade case in front of the U.S. Supreme Court in Washington, DC, on June 24, 2022.
CNN  — 

Two years after the overturning of Roe v. Wade, Republicans are still grappling with the political downsides of deferring to states on abortion policy.

Across the country, the question of when, or if, patients should have access to the procedure is far from settled. The 2022 Dobbs decision has opened a new front for abortion opponents, forcing Republicans to respond to waves of new developments and boosting Democrats electoral hopes.

GOP lawmakers in red states are still pushing to restrict abortion and testing new strategies that could dominate next year’s legislative season. Moments viewed as victories by abortion opponents – such as the Alabama Supreme Court’s ruling on embryos or the top Arizona court’s revival of an 1864 abortion ban – have sent Republicans in competitive races scrambling to distance themselves from unpopular positions, such as threats to in vitro fertilization or laws without rape and incest exceptions. (State GOP lawmakers ultimately voted to blunt or overturn those rulings.)

And two abortion cases before the US Supreme Court – a mid-June decision dismissing an effort to roll back the abortion pill mifepristone and a pending case on emergency abortions – have kept the issue in the spotlight ahead of the November election.

“The states are going to keep doing what they’re going to do, and the Supreme Court is going to do whatever they’re going to do,” said Mary Ziegler, a law professor and legal historian at the University of California, Davis, who supports abortion rights. “[Republicans are] going to have to respond to those developments.”

Those instances have created political fodder for Democrats, who hope anger over restrictions and enthusiasm for abortion rights ballot initiatives will help in the presidential race and tight congressional contests. Democrats have forced votes on reproductive health care bills in the US Senate and aggressively highlighted state-level restrictions and tied them back to Trump’s Supreme Court picks and the overturning of Roe.

Polling has shown that abortion is still a politically potent issue for Democrats and that most Americans prefer at least some access to the procedure. 

Voters also aren’t sold on Trump’s position, that abortion policy should be left to the states. A CNN poll released last month found that 49% of voters surveyed want to see federal abortion protections, while 37% wanted to leave the issue to the states. Just 14% supported national restrictions.

“President Trump was right to say that abortion policy should be left up to the states,” said Whit Ayres, a Republican political consultant. “The dramatic differences among state cultures means that there is no possible national policy that would be considered legitimate in both Mississippi and Massachusetts.”

Ayres said that while some states have gone “way overboard” with the abortion restrictions they’ve passed, he believes that eventually states will reach a consensus on abortion that match their culture.

The process of reaching that agreement has increased tensions between the GOP and anti-abortion groups that rejected the notion that their key issue is a political liability for Republicans. Instead, they’ve pursued their agenda at the state level and urged Trump and others to push harder at the federal level.

“While we lived under the tyranny of Roe it allowed lawmakers to sort of check the box of being pro-life, but then using the Supreme Court as the excuse for their inaction,” said Kristan Hawkins, the president of Students for Life of America. “When we took out Roe, that excuse was gone.”

State battles

Since 2022, nearly two dozen states have restricted abortion to a level that wouldn’t have been legal under Roe, including 14 that have near total bans in place.

Last month, Louisiana became the first state to pass a law labeling abortion pills as controlled substances, making it a felony to possess the drugs without a prescription.

“We’ve had a lot of wins, a lot of victories, but there is a lot at stake here this election,” said Kelsey Pritchard, the director of state public affairs at Susan B. Anthony Pro-Life America. “Republicans have to be as engaged and all in on this issue as Democrats are, otherwise Democrats will define the Republicans and mischaracterize their position.”

As the state legislative season draws to a close, Pritchard said her organization is now focused on political organizing. A handful of states, including battlegrounds like Nevada, Arizona and Florida, will have abortion rights measures on the November ballot or are actively seeking signatures. Democrats hope the measures will boost turnout and potentially put a state like Florida in play.

Chandan Khanna/AFP/Getty Images
Anti-abortion activists counter-protest near a rally to protect abortion rights in Orlando, Florida, on April 13, 2024.

Abortion opponents are also pursuing options to limit the procedure at the federal level.

Some conservatives have argued that the Comstock Act, an 1873 anti-vice law that prohibits the mailing of materials that would induce abortion, could be used to ban the pill through the executive branch. More than 60% of abortions performed in 2023 were done via mifepristone, according to the Guttmacher Institute, which supports abortion rights.

The Biden administration has argued the law isn’t enforceable in cases where the sender isn’t knowingly aiding an illegal abortion. Though the Supreme Court dismissed a case seeking to roll back access to mifepristone, the court’s ruling left the door open for another challenge from states.

Trump has not said how he would treat abortion medication during a second term. During a visit to Capitol Hill earlier this month, Trump has advised Republicans to follow their hearts on the issue, but advocated for exceptions for rape, incest and to protect the life of the mother, CNN reported.

Court action

Trump has also been critical of state abortion bans that restrict the procedure at six weeks, before many people know they’re pregnant, or lack exceptions. Several of those bans are still being actively challenged in state courts.

State courts are hearing challenges to near total abortion bans and other restrictions in more than a dozen states, including the battlegrounds of Georgia and Wisconsin. In Nebraska and Missouri, abortion advocates are also seeking to put abortion rights measures on the November ballot.

State courts have already had an outsized impact this year, thanks in part to the slower pace of the legal system compared to the legislative cycle.

The legal challenge against Arizona’s 1864 abortion ban, which prohibited the procedure at all stages of pregnancy except to save the life of the mother, dragged on for nearly two years before the state Supreme Court ruled in April that the state had to adhere to the law.

Arizona Democrats, aided by votes from Republicans facing tough reelection races and calls to overturn the ban from Trump and GOP Senate candidate Kari Lake, repealed the law in about a month.

Rebecca Noble/Getty Images
Members of Arizona for Abortion Access, the ballot initiative to enshrine abortion rights in the Arizona State Constitution, hold a press conference and protest condemning the 1864 abortion ban during a recess from a legislative session at the Arizona House of Representatives on April 17, 2024 in Phoenix, Arizona.

In Texas, the state Supreme Court ruled against plaintiffs in two cases seeking clarification of the state’s abortion law, which prohibits the procedure unless the pregnant person is at risk of death or the “substantial impairment of a major bodily function” without the procedure.

Amanda Zurawski, the lead plaintiff in a Texas suit of women who were denied emergency abortions in the state, has since become a surrogate for the Biden campaign. Zurawski nearly died of sepsis after she was initially denied an abortion after she suffered a preterm pre-labor rupture of membranes at 18 weeks of pregnancy. She has said her fertility was permanently damaged, and she is now using in vitro fertilization to expand her family.

“The Supreme Court decision overturning Roe v. Wade didn’t just end federal protection for abortion rights,” Zurawski said in a recent video for the Biden campaign. “It also unleashed extreme state laws that are threatening access to IVF.”

Abortion policy, and the role state courts play in interpreting those laws, has led to state Supreme Court races becoming more competitive. Less than half of states hold elections for state Supreme Court judges, but recent elections for judges in Wisconsin and Georgia have become high profiles races centered on state abortion laws.

In Texas, a former Democratic congressional candidate has launched a PAC to oust three state Supreme Court judges up for reelection this year.

“Leaving it up to the states, unfortunately, depends on the state,” said Gina Ortiz Jones, who launched the Find Out PAC in January. “In the instance of Texas, that has meant unnecessary suffering.”

Democrats seek to capitalize

The Biden campaign has stuck to a consistent playbook when talking about Trump and abortion policy. It has pointed to the times the former president took credit for appointing three of the judges who overturned Roe, linked every state-level policy shift to Trump and argued that national Republicans ultimately want to push a federal ban.

“Americans across the country vividly remember where they were two years ago when Trump’s Supreme Court majority overturned Roe, sending women’s health care into chaos and putting their lives in danger,”  Biden campaign manager Julie Chavez Rodriguez said in a statement ahead of the Dobbs anniversary. “Trump did this — he owns the state of reproductive rights in our country today and if he’s reelected he will go even further.”

Ahead of the Dobbs anniversary, Senate Democrats have scheduled votes on legislation that would protect and expand access to IVF and contraceptives. Republicans who voted against the bills argued that neither treatments were at risk and the votes were politically motivated. Another Democratic bill, led by Sen. Tina Smith of Minnesota, will seek to repeal the Comstock Act.

“Republicans say they have a messaging problem on abortion,” Smith, who is also a vice chair for Democratic senators’ campaign arm, said on a press call Thursday. “No, they have a policy problem.”