Abortion access under fire as states ready for possible Roe v. Wade overturn

Brett Kavanaugh questioned on Roe v. Wade

Two states voted Tuesday to add anti-abortion language to their constitutions in what some opponents say is preparation for a potential overturn of Roe v. Wade by the U.S. Supreme Court.

Voters in Alabama and West Virginia approved state ballot measures that addressed the question of abortion and sought to ban public Medicaid funding of the procedure. Both measures stated their state's constitution did not protect a woman's right to an abortion and their state would not provide funding for the procedure, except in the case of rape, incest and medical emergency, as is required by federal law.

"It basically paves the way to ban abortion in all instances," Shante Wolfe-Sisson, the campaign manager for Alabama for Healthy Families, a group that opposed the initiative, said Wednesday in an interview with CBS News. "In practice, it will sit in the Alabama constitution as a standing law so in the event that Roe v. Wade is overturned, it will automatically become law."

In Alabama, voters agreed to amend the state constitution to include that its policy was to protect "the sanctity of unborn life and the rights of unborn children, including the right to life" and its official stance on abortion was to "ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." Wolfe-Sisson says these changes would effectively outlaw pregnancy-ending procedures in the event Roe v. Wade gets overturned. Alabama State Rep. Mike Fridy, who sponsored the amendment, did not immediately return a call and email seeking comment.

In 1973, the Supreme Court ruling on Roe v. Wade prohibited states from banning abortion prior to fetus viability, securing a woman's right to access the procedure throughout the U.S. In recent years, a number of states have enacted measures such as waiting periods and restrictions on clinics that effectively reduce access to abortion without explicitly outlawing it.

However, with a Republican White House and increasingly conservative Supreme Court, some believe that the days of Roe v. Wade may be numbered. During a 2016 presidential debate, then-candidate Donald Trump said he foresaw the ruling being overturned if he were elected because he planned to appoint pro-life judges. He stressed the issue again in a speech before the 2018 midterm elections.

So far, the Supreme Court has not agreed to hear a direct challenge to Roe. But if it eventually does so, and if a majority of the justices vote to overturn that precedent, it would be up to individual states to determine whether to restrict or outlaw abortion within its borders. Measures like the ones seen in Alabama and West Virginia are essentially preemptive, said Wolfe-Sisson; in the event that Roe v. Wade is dismantled, abortion will automatically become illegal in Alabama.

West Virginians voted for language that said the state constitution does not "secure or protect" a woman's right to abortion. The state ballot measure also outlawed the use of Medicaid dollars to pay for abortion except in the case of rape, incest and life endangerment, said Patricia Puertas Rucker, a Republican state senator in West Virginia and lead sponsor of the amendment.

"I believe that that's something that people who have conscious objection shouldn't have to pay for," Rucker told CBS News. Medicaid is jointly funded by states and the federal government. Federal law doesn't allow states to bar Medicaid funding for abortions in cases of rape, incest or if the mother's life is in danger.

In a written statement, Dawn Laguens, the executive vice president of the Planned Parenthood Action Fund, called the latest state efforts an "unprecedented effort to insert politics into health care."

West Virginia currently has laws on the books criminalizing abortion, attaching a penalty of three to 10 years of jail time for either performing or receiving the procedure. However, the laws are not in effect because both federal and state courts have found the state code to be unconstitutional.

Meanwhile in Oregon, voters on Tuesday went the other direction, rejecting a proposal that would have cut state insurance funding for low-income women seeking abortions.