Us & Them: What’s Next For Abortion?

New legislative agendas at the state level aim to chip away at reproductive rights, even in states that recently passed constitutional protections for abortion. On this episode of Us & Them, Host Trey Kay examines how conservative state supreme courts might limit voter-approved amendments — and how abortion-friendly states are pushing back. Meanwhile, President Trump’s new administration could override all state laws through certain executive actions, including one involving a 19th century anti-vice law. Now that the election’s over, what’s next for abortion?

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There’s a fresh slate of legislative agendas in the new year and some include efforts to chip away at reproductive rights and access to abortion, even in states that have recently passed constitutional abortion rights ballot measures.

On this episode of Us & Them, Host Trey Kay looks at what’s ahead after a record number of initiatives passed in November. There’s a lot that conservative legislatures and courts can do to limit the voter-approved amendments. While legal maneuvering continues, the number of abortions in the U.S. is at its highest level in more than a decade thanks to the increased use of abortion pills and travel across state lines. 

Abortion opponents want President Donald Trump to enforce a 19th century law they say will stop abortion pills through the mail. Meanwhile, abortion-friendly states are using shield laws to protect their telehealth abortion providers from criminal prosecution for providing abortion pills to women in states with bans. The U.S.’s inconsistent abortion laws are pitting states against each other, and state governments against their citizens. 

This episode of Us & Them is presented with support from the CRC Foundation.

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Rick Weiland is chairman of Dakotans for Health. He led the campaign to pass Amendment G in South Dakota. The amendment followed the legal framework outlined in Roe v. Wade. There would be no restrictions on abortions in the first trimester, but increasing limitations after that, including a ban in the third trimester with few exceptions. The proposed amendment did not get support from regional chapters of Planned Parenthood and the ACLU.

Photo Credit: Dakotans for Health

“We got attacked from the religious right for putting a measure on the ballot that they tagged as too extreme. And we got attacked from the left for not going far enough. We had embraced the trimester tenets of Roe v. Wade, thinking that that was a good middle ground in South Dakota. So, we were kind of stuck between a rock and a hard place, wanting to work with them [Planned Parenthood and the ACLU], wanting their help. But at the end of the day, they just chose to not get involved with our efforts, which was unfortunate.”

– Rick Weiland

Romy Ellenbogen is a journalist who reports on Florida’s state government for the Tampa Bay Times and the Miami Herald. She wrote about Republican Gov. Ron DeSantis’ efforts to undermine support for Amendment 4, which would have overturned Florida’s six-week ban on abortion.

Photo Credit: Romy Ellenbogen

“In the months leading up to the election is when Gov. DeSantis really went full throttle on Amendment 4. If you were to scroll on social media, if you were to watch TV, you would see these state sponsored PSAs [public service announcements] that really were put there to counter pro-Amendment 4 language. The Department of State had certified Amendment 4 to appear on the ballot early in 2024 and then months later, turns out they’re conducting this big review and pulling all of these petitions. Election supervisors that we spoke to said it was unprecedented for the state to review petitions that they had already deemed as valid compared to, in a fraud review, looking at rejected petitions, which is what the state would have normally done.”

– Romy Ellenbogen

Democrat Rep. Margaret Croke represents the Illinois House of Representatives’ 12th District, which comprises Chicago’s lakefront communities, including Gold Coast, Old Town, Lincoln Park and East Lakeview. She was reelected to a third term in 2024 and has made reproductive rights, women’s health and children her special focus. Illinois is one of five states that allow for citizen-initiated constitutional amendments and have yet to consider one. Illinois has many laws protecting reproductive rights. Croke said the legislature chose not to place an abortion rights constitutional amendment on the ballot, the way the abortion-friendly states of New York and Maryland did, because they’re confident the laws are not in immediate danger of a Republican rollback. She said Democratic lawmakers also wanted more time to consider other rights they may want to protect following the fall of Roe.

Photo Credit: Illinois House Democrats

“Some of these other things that kind of fell in the Roe v. Wade decision that we had this assumption to the right of privacy. And in Illinois, do we want to make sure at the same time that we are going to put a constitutional amendment about choice? Do we want to include any of those other issues in the same breath? And if we are going to do something ‘choice plus,’ we need to make sure that messaging is just incredibly well done. And that takes time. It takes education. So I think that that is the conversation we’re having right now.” 

– Illinois State Rep. Margaret Croke, 12th District

Jessie Hill, Esq. is a law professor at Case Western Reserve University in Cleveland, Ohio. She is also a volunteer attorney with the ACLU of Ohio and helped write the reproductive rights amendment known as Issue 1, which Ohioans passed in 2023. Hill said Ohio was the first red state to pass a constitutional amendment enshrining the right to an abortion. It allows for abortion up to fetal viability, which is around 24 weeks of pregnancy. In light of the passage of Issue 1, Hill asked a trial judge to overturn Ohio’s six-week ban, which he did. Another judge has stayed other abortion restrictions, including Ohio’s 24-hour waiting period, its ban on telehealth medication abortions and certain informed consent requirements. Those cases are likely to go before an Ohio Supreme Court that, since the election, now has a 6-1 Republican majority.

Photo Credit: Case Western Reserve University

“The language is written very broadly. It lays out a very clear legal test for courts to apply. The trial courts who have addressed it have found it very understandable and very protective.

“I would like to think that whatever party identification is next to a judge’s name, that they will read the law and apply the law as it’s written. I would like to think that, regardless of what their party composition is, that they’re going to do their jobs. It certainly is a cause for concern as an attorney and as an attorney who may be litigating in front of that court. But, you know, like I said, in theory and, you know, according to what conservative justices say, they believe that the text of the Constitution is worthy of respect and it’s what they have to follow. And I think if they do that, we should still win all of our cases.“

– Jessie Hill, law professor and volunteer attorney, ACLU of Ohio

Mike Gonidakis is an attorney and the president of Ohio Right to Life, the largest anti-abortion advocacy group in the state. Gonidakis and the organization have worked closely with Republican lawmakers to craft Ohio’s abortion regulations. He said Issue 1’s language is vague and will require the expertise of the conservative Ohio Supreme Court.

Photo Credit: Ohio Right To Life

“We just elected three Ohio pro-life Supreme Court justices and the current makeup of the court, which is seven members, six of them are endorsed by Ohio Right to Life. So, I can’t guess what they’re going to do. But here’s what I told the voters of Ohio this last election when they were considering who to vote for. Do you want a liberal pro-choice majority on the court writing the first decision on Issue 1? Or do you want a conservative pro-life court writing the first decision on Issue 1? And the voters of Ohio overwhelmingly chose the conservative court.”

– Mike Gonidakis, Ohio Right to Life

Julie F. Kay – who is not related to Trey – is a human rights attorney and the co-founder and executive director of the Abortion Coalition for Telemedicine, ACT. Kay said the goal of the ACT is to help more doctors set up telehealth abortion practices to provide medication abortion for women in all 50 states, including states with near-total bans. Eight states shield telehealth abortion providers who send abortion pills to women in states with bans from prosecution by those states. New York is one of those eight states. Its shield law is currently being challenged by Texas, which brought a lawsuit against a New York doctor who sent abortion pills to a 20-year-old woman in Texas in violation of the state’s abortion ban.

Photo Credit: Footsteps

“So, if there’s a patient in Arkansas who’s looking for access to a medication abortion and either can’t travel or doesn’t want to, she can go online to one of the telemedicine providers in a shield state who serves all 50 states and does the screening. The doctor sends the medications to Arkansas. She gets her medications. And let’s say, her angry ex-husband or something, is like, ‘I don’t approve of this. I’m going after the doctor,’ and tries to get a criminal warrant against the doctor in New York. The state of New York, because of their shield law, is not going to send that provider down to Arkansas on a criminal charge.” 

– Julie Kay, Abortion Coalition for Telemedicine

James Bopp, Jr. is the founder of the Bopp Law Firm in Terre Haute, Indiana. He is the longtime general counsel to National Right to Life. He’s one of the top legal minds in the conservative movement. The New York Times has called him “the most prolific anti-abortion litigator of his generation” and a “bulldog litigator.” Anti-abortion advocates like Bopp want President Donald Trump’s Department of Justice to start enforcing the Comstock Act of 1873. The law prohibits the mailing of obscene material, including anything designed to produce an abortion. It’s been amended over the years, but the statute’s abortion language remains. Bopp sees the Comstock Act as a way of stopping telehealth abortion providers and online retailers from mailing abortion pills to people. It could also halt the makers of those pills from shipping them to abortion providers. Abortion rights advocates say this is a misapplication of Comstock that has been rejected by the courts. But Bopp sees it as an action Trump can take without going against his campaign promise to leave abortion regulations to the states.

Photo Credit: James Bopp, Jr.

“Interstate transport is not governed by the states. Interstate transport is governed by federal law. And federal law already has a prohibition on interstate transport of abortion drugs. So there’s no new law. It’s been around for quite a while. It’s very specific. So, his [Trump’s] commitment not to try to limit abortion in the states by federal law is perfectly consistent with the federal government’s authority to regulate interstate activities. And that’s what he would be doing with the Comstock Act.”

– James Bopp, Jr., general counsel for National Right to Life

Other WVPB reports on the subject of abortion:

**Editor’s Note: An earlier version of this story incorrectly reported Allysa Wagner’s title. She is a Doctor of Nursing Practice and Medical Director of Hey Jane.

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