In preparation for Roe v. Wade's eventual fall, abortion rights activists have been writing so-called model legislation for over two decades.
Model legislation and political pressure from national organizations opposing abortion rights led to key terms being cemented into law, the limitation on abortion access, and the influence behind trigger laws that will be in effect in 13 states this Summer as a result the Supreme Court's recent decision overturning Roe.
Americans United for Life (and the National Right to Life Committee) are the leaders in anti-abortion legislation. They provide legal counsel, model bills, and advocacy efforts for the anti–abortion movement.
"Building upon the momentum from last years, Idaho and Utah passed conditional bills similar AUL's model bill. This would ban abortion in case Roe v. Wade is overturned or lawmaking power was given back to the states," says AUL's 2020 state legislative session report.
These two groups worked together over the past several decades to increase abortion restrictions nationwide. This eventually led to bans in certain states, according Elizabeth Nash (state policy analyst at the Guttmacher Institute), a think tank that supports abortion right.
"What the national group has been able do is to essentially craft the language on restrictions or bans and they have all the networks to spread it throughout the country through the state legislatures. These very similar bills are moving quickly, which has given momentum for restrictions," Nash stated. "So, we saw these legislatures adopting restriction upon restriction which prompted states to start considering abortion bans since most of these states had already adopted almost every restriction in the book.
As the Supreme Court's composition became more conservative, this legislative pattern was created.
Ingrid Duran (director of the Department of State Legislation, National Right to Life Committee) stated that Roe was being stripped of its origin little by little through an incremental approach. "That's why it was so easy to see Roe's demise after all these election cycles and various political appointments."
According to Nash the two national groups have concentrated their efforts on restricting abortion that could be enacted immediately with very few legal challenges. If the court overturned Roe, total bans would have been more symbolic.
Nash stated that it was initially meant to allow state legislatures to declare their support for abortion bans. "But, because the effective date was in future, it wasn't possible to challenge them because they weren’t going into effect."
The National Right to Life Committee has been able to get its model legislation drafts passed across the country over the past decades. The "Pain Capable Unborn Child Act" is one example. This makes it illegal to perform abortions within 20 weeks. That's the time at which advocates claim that a fetus may feel pain. Duran claims that the National Right to Life version of this bill has been passed in 16 states. However, it was blocked in Idaho.
Since 2016, 13 states have adopted the NRLC model legislation for the Unborn Child Protection from Dismemberment Abortion Act. All of these laws include the same definitions of "dismemberment". Kentucky adopted its own definition of "dismemberment", but used the same model. Legal disputes caused many of these laws to be halted.
Trump years also saw abortion rights supporters notice terms such as "unborn child" instead of "fetus or "embryo", in legislation text that was eventually signed into law. The term is in 12 out of 13 trigger laws.
It is not a new practice to use anti-abortion model legislation. A joint investigation by USA Today and Arizona Republic revealed that AUL was the most prominent group responsible for writing legislation restricting abortion access. It was also the first to introduce and pass such legislation in the statehouses across the country.
These two organizations also serve as resources to local organizations that are trying to draft bills. Louisiana Right to Life, for example, does not use any particular model to create its trigger law. Instead, it uses the legal counsel and advice of the NRLC.
Duran stated that model legislation was written primarily at former Justice Anthony Kennedy. He retired in 2018 because he was considered the swing vote of the court.
"We were looking at which brand new question we could ask the Supreme Court. Duran stated that if we were looking at Kennedy courts, then at that point, we would be like, "Well, let us ask a new question." Duran also said that Duran's group had a strategy for legislation that focused on pain-based arguments in the event of a larger case. Kennedy was more supportive of bills like the Pain Capable Unborn Child Act than they were of stricter bans.
These 13 trigger laws, which are expected to take effect in the coming weeks, were all passed by the respective legislatures between 2005 and 2007, under the Bush administration, as well as between 2019 and 2021 under the Trump administration. Both periods saw the addition of conservative justices to the Supreme Court.
It all depends on the political climate. Duran stated that it all depends on what legislation can be passed, as well as the legislative strategy. Duran noted that over the past 20 years some states have chosen to limit access while others pursue trigger laws.
Trump, the former President, campaigned for and kept his promise to appoint additional judges and justices who oppose abortion rights.
Nash stated that the most recent wave of abortion bans occurred following the appointments by Justices Brett Kavanaugh and Amy Coney Barrett. This was in time for 2019 state legislative sessions.
Duran stated that "our strategy was to put more protection language out there to determine what we can do and whether it's trying different pieces legislation like antidiscrimination bills, trying to protect unborn babies even earlier in pregnancy." It allowed us be a bit bolder in our ask, when we had a friendlier court...It enabled us to get a little creative with our laws and see just how far we can go to protect unborn children effectively."
Each of the trigger laws does not have to be based on the copy-and-paste format for a model bill that was written by national groups. Local groups that oppose abortion rights or affiliate with national organizations have greater influence.
Nash stated that during the initial wave of bans on abortion between 2005 and 2007, legislation was largely spearheaded by grassroots efforts. Local affiliates kept pushing forward during the subsequent wave of bans in 2019 & beyond.
It does not necessarily mean that the state's citizens are voting, but rather, what you see is coming from the anti-abortion groups within those states. Mary Ziegler is a Florida State University law professor and legal historian. However, she pointed out that the national nature and impact of the movement led to more moderated measures. "There were some things that, even though the movement had the same agenda, there were things that weren’t said or done as it was seen as jeopardizing larger plans."
These provisions could cover any law that would not be applicable to a national legal dispute.
"It's a free for all because there was more coordination before. Ziegler stated that Americans United for Life and the National Right to Life Committee basically coordinated all of it. You would know which groups to focus on and why. It's not that simple. Which groups will dictate? The state may determine the strategy."