BOSTON — Anticipating renewed fights over abortion, some governors and state lawmakers already are searching for ways to enhance or dismantle the right in their constitutions and laws.
President Donald Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court has raised the possibility that a conservative court majority could weaken or overturn the 1973 Roe v. Wade ruling, which created a nationwide right to abortion. That could fan an already raging battle in states over what should and should not be legal.
While a complete reversal of Roe remains a longshot, some Democratic elected officials want to enact new abortion protections and repeal dormant laws that criminalize abortion. While those laws have been ignored for decades, some stretching back to the 19th century, Democrats want to erase them so they cannot be revived in the future.
“As long as they are enshrined in statute, they can be picked up and used by people who do not feel the same way about women and their bodies that I would say most people in this state feel,” said Massachusetts state Senate President Harriette Chandler, a Democrat.
Chandler is pushing to repeal an abortion ban from the 1800s that has remained unenforced, in part because of a 1981 state court ruling protecting access to abortion.
The Massachusetts Senate approved the bill unanimously in January. The House speaker, also a Democrat, said that chamber will take it up before the end of the formal legislative session July 31.
In New York, Democratic Gov. Andrew Cuomo has been holding rallies after Kavanaugh’s nomination this week urging the state Senate to reconvene. He wants it to strengthen the right to an abortion, a seemingly unlikely event in the Republican-led chamber.
Democratic Assembly Speaker Carl Heastie said the state law legalizing abortion, passed three years before the Roe ruling, includes a ban on third-trimester abortions and offers very limited exceptions.
The Assembly has passed legislation codifying Roe six consecutive times, but the Senate has repeatedly blocked it.
“There may have once been a time when we felt comfortable with the protections Roe v. Wade offered,” Heastie said. “But that time has passed, and now these fundamental rights are threatened like never before. We cannot afford to take this right for granted.”
Seventeen states already have laws that could be used to restrict the legal status of abortions if Roe is overturned or severely limited. Of those, Massachusetts is one of 10 states that still have pre-Roe abortion bans on the books, according to the Guttmacher Institute, a national research group that supports abortion rights.
The institute says nine other states have laws specifically protecting abortion rights.
Lawmakers in some Republican-led states have been attempting for decades to chip away at the Roe ruling by restricting when, where and how abortions can be provided. Kavanaugh’s appointment could lead to a surge in such measures.
“The time is right. We need to act on it,” said Missouri Rep. Mike Moon, who is hoping Trump’s Supreme Court appointment breathes new life into an anti-abortion state constitutional amendment that stalled earlier this year.
The Missouri proposal states that “nothing in this constitution secures or protects a right to abortion or requires the funding of an abortion.” It mirrors one first adopted by Tennessee voters in 2014 and placed on this November’s ballot by Republican-led legislatures in Alabama and West Virginia.
