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Nonprofits Successfully Challenge Red State Restrictions on Abortion

Nonprofit groups have helped preserve access to abortion even in states where the procedure's been banned.

Pro-choice protesters stand in front of pro-life protesters in New York City
A Planned Parenthood clinic in downtown Manhattan drew demonstrators from both sides of the issue last month. (Spencer Platt/Getty Images/TNS)
Spencer Platt/TNS
When the Supreme Court decided in the Dobbs case back in 2022 that the Constitution didn’t create a right to abortion — and that decisions about abortion policy ought to rest instead with state governments — everyone anticipated a tug-of-war between the red and blue states. Few expected that the front lines of the struggle would be on highways and in the mail.

Almost no one anticipated that one of the biggest counterattacks would come through a virtual underground railroad of nonprofit organizations committed to getting around red-state abortion restrictions. With every effort in the red states to limit access to abortion, a nonprofit pivoted to counterattack.

Anti-abortion activists worked for a generation to overturn the 1973 Roe decision, and they celebrated when the court handed down Dobbs. They quickly discovered, however, that their toughest ongoing fight was against nonprofits supporting abortion and dedicated to frustrating new anti-abortion laws.

For example, Texas in 2021 passed a “trigger law” automatically banning abortions 30 days after any decision by the U.S. Supreme Court overturning Roe v. Wade. So, when the court ruled against Roe in 2022, the state quickly had one of the most restrictive abortion bans in the country.

But in late 2023, a Dallas woman, Kate Cox, found out that her unborn baby girl had a serious birth defect. Her obstetrician told her that there was no option “where I take home a healthy baby girl.” The Texas law made it impossible for her to get an abortion, she said, and “that’s when I came across the Center for Reproductive Rights.”

The center challenged the law in court but lost. Then it helped her travel out of state to get the abortion. In the process, it generated an enormous amount of publicity for the pro-abortion movement. At the 2024 State of the Union address, Cox was in the gallery as Jill Biden’s guest.

Idaho passed its own trigger law in 2020 and then passed a “parental rights” bill to make it illegal to give minors abortion pills or help them leave the state to obtain abortion care without a parent’s consent. However, the Northwest Abortion Access Fund and the Indigenous Idaho Alliance successfully sued to stop implementation of the law. Idaho Abortion Rights then worked to get women free abortion pills online. Yet again, nonprofits allied to frustrate state abortion restrictions.

Meanwhile, legislatures in Missouri, Oklahoma and Tennessee tried similar restrictions. The nonprofits geared up to develop workarounds for women who lived in those states.

Four Texas counties passed what officials called “sanctuary city for the unborn” ordinances. Anti-abortion activists from New Mexico came to the counties to pledge their support, saying they wanted to stop “abortion trafficking.” But once more, a network of nonprofits sprang up.

Fund Texas Choice, for example, coordinated and paid for travel and lodging for women seeking an abortion out of the state. Another nonprofit, Power to Decide, set up an AbortionFinder website to track down where women could find an abortion, while built a network of nonprofits that provide, coordinate and pay for care, including at the Women’s Reproductive Clinic of New Mexico, which set up a clinic just five minutes across the Texas border from El Paso.

State-based restrictions are melting away. One in five women now travel out of state to get abortions, and medication abortions, for which pills can be delivered by mail in unmarked envelopes, account for more than half of all procedures.

The premise of Dobbs was the promise of state government autonomy: that each state could go its own way on abortion policy. The rise of the women’s rights nonprofits, however, has exasperated state officials. In some cases, workarounds like the one for Kate Cox attracted national attention and big inflows of cash. In other cases, such as the Alabama Supreme Court’s decision that temporarily froze in vitro fertilization, the nonprofits galvanized a national movement that pushed the legislature into quickly responding.

These nonprofit workarounds are expensive to mount. They’re limited in how many women can use them. But they’ve eroded the victory that the anti-abortion community thought it had won.

The frustrations surrounding Dobbs have ironically led anti-abortion campaigners to move past their insistence that the states make policy and to campaign instead to federalize the issue, hoping they can enforce a more uniform policy. But given the enormous difficulty involved with Congress deciding anything, that seems only a prescription for more conflict and, potentially, for even greater confusion about just what policies apply where.

Soon after the Supreme Court announced the Dobbs decision, Sen. Ted Cruz, a Texas Republican, hailed it, saying it “reverses one of the most egregious departures from the Constitution and legal precedent the United States has ever seen.” He predicted that the decision would “leave abortion policy up to the states.”

His prediction turned out to be only partially true. The nonprofits have opened up a new front for the pro-abortion community, a front that no one really saw coming and which has ironically left national abortion policy even more in doubt.
Donald F. Kettl is professor emeritus and former dean of the University of Maryland School of Public Policy. He is the co-author with William D. Eggers of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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