Will Louisiana Be the First State to Criminalize Abortion After Justice Ginsburg’s Death?

The ballot measure is a doubling down on Louisiana's "trigger law," in preparation for a post-Roe future.

[PHOTO: Activist holds sign that reads:
Reproductive Justice Action Collective will host conversations later this month with trans and gender nonconforming people and youth activists across Louisiana about the ripple effects of voting. Sarah Silbiger/Getty Images

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Reproductive rights and justice advocates in Louisiana have had a long year. While in the final stages of a legal battle over an admitting privileges law that the Supreme Court struck down in late June, they were also gearing up to fight a November ballot initiative that would amend the state constitution to declare Louisiana doesn’t recognize the right to abortion.

While anti-abortion activists across the country have been trying to weaken or overturn Roe v. Wade for years, with nearly 500 abortion restrictions enacted since 2011, only Alabama, Tennessee, and West Virginia have amended their constitutions with this kind of language, said Elisabeth Smith, chief counsel for state policy and advocacy at the Center for Reproductive Rights.

So long as the federal right to abortion is in place, an anti-abortion amendment in Louisiana wouldn’t change anything for patients and providers. Plus, the state already has what’s known as a “trigger law,” ensuring that if Roe is overturned, abortion is automatically banned. This amendment is functionally doubling down on the same policy in preparation for a post-Roe future.

“Louisiana has almost every abortion ban and restriction you can think of,” Smith said. The ballot measure, called Louisiana Amendment 1, “was a way for anti-abortion legislators to once again show their opposition to abortion.” The text of the proposed amendment reads: “to protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”

A coalition of groups is fighting back. Pearl Ricks, executive director of the New Orleans-based Reproductive Justice Action Collective (ReJAC), said the group is asking voters to consider the hypocrisy of the state constitution’s preamble.

“We want to invite people to challenge what it truly means to protect human life,” Ricks said, listing some examples of how the state is failing its residents: kids without the internet access necessary for their education, the existence of a school-to-prison pipeline, families going without enough food, and high maternal death rates.

“Our constitution is imperfect, and the idea is that it gets stronger and gives more rights, access, and quality of life to people across Louisiana with time—not that we would have a constitutional amendment that would remove people’s rights,” Ricks said.

Louisiana for Personal Freedoms is a coalition organizing to fight the proposed amendment; Katrina Rogers, its campaign manager, said the group is highlighting how both the state economy and the environment impact people’s choices to parent or not parent in the way they want to. The state’s hospitality and tourism industry has been hit hard during the pandemic, and the maximum unemployment benefit is just $247 per week. There’s underregulated pollution in an area between New Orleans and Baton Rouge known as Cancer Alley, but residents aren’t voting on solutions for either of these problems in November—they’re instead voting on an abortion ban.

“It’s never a good time to strip people of bodily autonomy or take rights away and especially within the constitution,” Rogers said, but trying to do it now rather than protecting residents from existential threats is especially shameful.

Rogers also noted that the amendment will not stop people from having abortions.

“If the Supreme Court overturns Roe, if abortion care becomes illegal in Louisiana, it doesn’t end abortion,” Rogers said. “That limits people having access to safe abortions and that limits a lot of people who can’t afford to travel or don’t have access to a network to help them get an abortion, but it doesn’t outright end abortion.”

The New Orleans Abortion Fund (NOAF) is also running a voter education campaign highlighting the harms of the amendment and has “vote no” billboards across the state.

In conversations with voters, Rogers’ group sometimes has to take a step back and explain that abortion is still legal in the state; the six-week ban that passed in May 2019 is currently blocked.

There’s a narrative that Louisiana is very conservative, but that ignores partisan gerrymandering that has led to minority rule, Rogers said. Something similar can be said about views on abortion.

“Just based on the volume of what we hear in decibels and also just the amount of information, it would sound like this country is just anti-abortion in every way possible,” Rogers said. “But if you take a step back and you talk to people and you look at the numbers, that’s not the case at all. We’re getting bombarded by a narrative that is not connected to our reality, or our values.”

“Politicians should not get the final say on your body, or anybody out there. We want to make sure that Louisiana knows it is in our hands right now.”
-Pearl Ricks, Reproductive Justice Action Collective executive director

The proposed amendment makes no exceptions for pregnancies resulting from rape or incest. According to Kathaleen Pittman, director of Hope Medical Group for Women in Shreveport and lead plaintiff in the recent Supreme Court case, that could lead to its defeat.

“I think a majority of people in the state are pro-choice in some fashion or another,” Pittman told Rewire News Group in July. “The fact that amendment doesn’t allow for any exceptions is going to be a problem for them. I hope it is. If the people actually speak up, perhaps that will quiet some of the politicians.”

ReJAC will host conversations on October 14 and 15 with trans and gender nonconforming people and youth activists across the state, acknowledging that while voting turns some people off, people aren’t just voting for the president—they’re voting on this amendment, as well as for district attorneys who will choose which crimes to prosecute should abortion become illegal in Louisiana, and for the judges who will rule in those cases. The panels will have Spanish and American Sign Language translations as well as closed-captioning.

“We already have a right to choose an abortion, which is why they want to write it in that we don’t,” Ricks said. “And politicians should not get the final say on my body, politicians should not get the final say on your body, or anybody out there. We want to make sure that Louisiana knows it is in our hands right now, and we do have the ability to make our voices heard.”

Louisiana for Personal Freedoms is spreading the word about the amendment through text and phone banks, emails, digital ads, and literature drops. The coalition had planned what it called a massive door-knocking effort, but the pandemic shelved that. Rogers said the first goal is to defeat the amendment and the second is to connect groups that are working to improve the lives of people in Louisiana.

“I look at the campaign as not only an opportunity but a responsibility that we can unify and work together because even if our issues aren’t the same, so much of the overlap and the source of it is typically the same,” she said. Even if the amendment passes, their organizing could pay off in the future. “We want to connect people so that if something like this comes up again, we can kill it in committee because we have an infrastructure in place and it’s statewide,” Rogers said.

While a voter-approved amendment wouldn’t take effect as long as the federal right to abortion exists, Smith noted that numerous challenges to state abortion restrictions are working their way to the Supreme Court—a court that could soon tilt even more conservative with the nomination of Amy Coney Barrett.

The Louisiana case that the Center for Reproductive Rights argued before the Court earlier this year, June Medical Services v. Russo, didn’t actually challenge the holdings of Roe.

“It was about how a state could restrict abortion, not whether abortion is a right,” Smith said. “But we’ve all seen states that are hostile to abortion rights have early gestational bans, six-week bans. And those cases really do get to the heart of, is abortion a right, does a pregnant person have the right to terminate their pregnancy prior to viability?”

Without Justice Ruth Bader Ginsburg on the Court, proponents of abortion rights are in a “very precarious position,” Smith said. But, she added, as we have a public conversation about abortion, “we want to have another conversation about how we better support pregnant people with all of their options, better support families, better support children.”