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Federal abortion protections at risk in high stakes congressional, Senate races

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The U.S. Supreme Court appears poised to overturn Roe v. Wade this summer with a ruling that would erode federal protections for abortion rights established nearly 50 years ago, refueling the polarizing debate in many of Nevada’s most competitive races.

Though the right to abortion in Nevada is unlikely to be significantly rolled back because of protections codified in state law, the existence of high-profile anti-abortion candidates seeking federal and state office means that Nevada’s 2022 election has the potential to affect abortion access for states throughout the country, according to Alexa Solis, strategic programs manager at Planned Parenthood Votes Nevada.

Abortion access doesn’t happen in a vacuum, especially now,” Solis told VT. “What happens at the federal level has an impact here at home, and as we’ve seen time and time again, the difference between maintaining the status quo and making actual progress can come down to just a few votes.”

As the Supreme Court outlook makes it increasingly likely that control over abortion regulations will shift to individual states, Republican-led legislatures are imposing more restrictions on abortions — nine states could see pre-Roe abortion bans reinstated. At the same time, Democrat-controlled statehouses are moving to enshrine the right to abortion in state law.

In Nevada, Democratic incumbents have called for Congress to codify protections for abortion into federal law, while many Republican candidates have walked a fine line on the issue in a state where a majority of voters staunchly support abortion rights. Many have attempted to thread the needle between opposing abortion outright and avoiding messaging that would alienate pro-choice Republicans and moderates, but others, such as Republican congressional candidate Noah Malgeri, have been more outspoken, arguing that abortions are “evil” and that the end of Roe could give way to “abortion tourism.”

Anti-abortion voters view a candidate’s stance on the protection of life — from conception to natural death — as a deciding factor when casting a ballot, Nevada Right to Life Executive Director Melissa Clement said in an email. The upcoming Supreme Court decision may present an opportunity to shift the law, but it all depends who is elected to state and federal office, she added.

“If Roe v Wade is overturned it is merely a return to democracy. Each state will then decide its laws related to the protection of the unborn,” Clement said.

Competing views on the issue come in a state where abortion rights have been protected by state law for more than 30 years. In 1990, nearly two-thirds of Nevada voters approved a ballot measure allowing for abortions within 24 weeks of pregnancy — timing that mirrors Roe’s protections for abortions before a fetus is viable outside the womb. Recent polling shows a similar share of Nevada voters continue to describe themselves as “pro-choice.”

Approval of the 1990 ballot measure means only a direct majority vote from the people could overturn that protection for abortions. In Nevada, access to abortions would be unaffected by overturning Roe. But if the nation’s highest court does weaken or overturn the protections provided by Roe, Nevada could become a refuge for abortion seekers living in red states prepared to significantly limit access to abortion.

Anti-abortion advocates also view the Supreme Court’s decision as having the potential to set off a domino effect that could galvanize voters to overturn the Nevada laws surrounding abortion protections.

“Nevada will see little change until there is a referendum on whether Nevadans support abortion for all nine months of pregnancy for any reason,” Clement said. “Once Nevadans vote this concept down, state legislators can then take up the question whether limits should be placed on abortionists and whether the unborn and their mothers should be protected.”

The decision has already set the stage for a fight in Congress, where Nevada Democratic delegates are pushing for a measure to codify Roe’s protections at a national level.

“The urgency of this moment cannot be overstated. We must act now because if Roe is overturned, the consequences will be catastrophic,” Rep. Susie Lee (D-NV) wrote in a Las Vegas Sun column in January.

Though the effort to codify Roe failed to advance through the Senate, Lee and Sen. Catherine Cortez Masto (D-NV) have raised the alarm that the stakes for abortion rights have never been higher, and Democrats are using those stakes to mobilize voters during the 2022 election.

Solis and other advocates are also watching the races closely.

“If we’re ever going to get the federal protections for abortion rights and access that we so desperately need, ensuring that congressional and Senate seats in Nevada are filled by reproductive health and rights champions is vital,” Solis said.

Voters cast their ballots at a polling location inside John Dooley Elementary School in Henderson on Tuesday, Nov. 3, 2020. (Daniel Clark/VT)

Roe and abortion in Nevada

In 1973, the Supreme Court ruled in a 7-2 decision in the case of Roe v. Wade that a Texas law banning abortions except to save a mother’s life was unconstitutional because it violated “zones of privacy” guaranteed by the First, Fourth, Ninth and Fourteenth Amendments.

The ruling drew on previous cases to establish that the government cannot interfere with personal decisions surrounding contraception, marriage and child-raising, and determined that the choice to have an abortion was up to the mother and doctor during the first trimester of pregnancy.

In the second trimester, the state could regulate abortion procedures but not outlaw abortions. Subsequent to viability (as early as 24 weeks), the court ruled that states could regulate or ban abortions unless the mother found herself in a life-threatening situation.

Almost five decades later, the court’s 6-3 conservative majority is expected to uphold a 2018 Mississippi law that bans most abortions after 15 weeks of pregnancy. The state has also asked the court to overturn Roe — a change that would leave no federal abortion protections in place, allowing states to individually enact abortion bans as early in pregnancy as they choose.

Facing that possibility, other GOP-led states have taken steps to enact their own limits on abortion. Florida lawmakers recently approved a measure banning most abortions after 15 weeks, with limited exceptions. And last year, Texas passed a law prohibiting abortions once a fetal heartbeat can be detected, sometimes as early as six weeks into pregnancy. The law includes a carveout for abortions necessary to save a pregnant person’s life, but excludes cases of rape or incest. Idaho lawmakers passed a similar bill this month.

Since the implementation of the Texas legislation, Planned Parenthood health centers have already seen a significant increase in patients. Data released by the Planned Parenthood Federation of America showed an 800 percent increase in abortions in surrounding states provided to patients from Texas after the law was passed.

At the federal level, Democrats are hoping to pass the Women’s Health Protection Act, which would preserve access to abortions even if the Supreme Court overturns Roe.

The House passed the measure in September, but the effort stalled in the Senate and failed to receive the 60 votes needed to overcome a filibuster.

Though two Republican senators support codifying of Roe, the success of Democrats’ fight to protect abortion access in more than 20 states could depend on their ability to maintain control of the House and Senate in 2022.

For those looking to elect anti-abortion candidates, Clement said the key is to focus on Republican races.

“Only two people currently have a public record of standing for life — former Attorney General Adam Laxalt (running for U.S. Senate) and Congressman Mark Amodei (Congressional District 2 representative),” Clement said. “Like the public, almost all Republican candidates at all levels have accepted the science that life in utero is human life and not a clump of tissue.”

Nevada Right to Life has not yet endorsed 2022 candidates for office.

Even as restrictive laws bring more abortion seekers to Nevada, some Republican candidates have campaigned on enacting similar laws in the state.

But making good on those views is highly unlikely. Following the 1990 ballot measure’s passage, Nevada’s lawmakers and governor have no power to restrict abortion access earlier than 24 weeks into pregnancy. There are ways of enacting more targeted restrictions on abortion, such as requiring parental notification before a minor receives an abortion. This year, anti-abortion advocates are pushing for a ballot initiative to implement that measure, though previous attempts to do so have failed.

Achieving enough support for the ballot measure or a majority vote to overturn the state’s protections on abortion appears impractical amid continued widespread support for abortion access.

Ken Miller, an assistant political science professor at UNLV, characterized national opinion on abortion as “very liberal.” But he noted the small group of Republicans who are very conservative on abortion tend be the most vocal and most motivated by the issue — a dynamic that leaves Republican candidates in a “delicate dance” between the two groups, seeking support from more conservative voters during primary elections and a broad group of voters who are more supportive of abortion during general elections.

“[The Democratic Party] can be openly pro-choice, and then it can go out into the general election and be openly pro-choice,” Miller said. “Whereas for Republicans, it’s more of a quandary, especially here in Nevada, because this is a closely fought state.”

A July poll of nearly 800 registered Nevada voters conducted by OH Predictive Insights for VT found that 65 percent of respondents described themselves as “pro-choice” on the topic of abortion, including more than half of registered Republicans (52 percent). Those views are more pro-abortion than at the national level — a 2021 Gallup poll found Americans split almost evenly between being “pro-choice” (49 percent) and “pro-life” (47 percent).

UNR Assistant Political Science Professor Christina Ladam said the Nevada electorate’s lean toward pro-abortion rights could in part be influenced by the state having one of the highest rates of non-religious people and a more libertarian streak of wanting less government involvement. But Ladam said abortion is not necessarily a motivating issue, and candidates often use it to signal to voters where they exist on the political spectrum.

Senate candidates maintain hardline stances on abortion issue

Last elected in 2016, Cortez Masto is expected to be one of the most vulnerable Senate Democrats up for re-election in 2022 in a race that has implications not just for the potential of codifying abortion protections into federal law, but also for the appointment of Supreme Court justices who will weigh in on abortion cases and federal allocations of funding for abortion and reproductive services.

But as Republicans eye Nevada’s Senate seat as a likely pickup opportunity in the wake of President Joe Biden’s low approval ratings, rising inflation and high gas prices, Cortez Masto is eager to contrast her stance on abortion with Laxalt, her likely Republican opponent.

“I stand for reproductive women’s rights, he’s opposed to that,” Cortez Masto said after a campaign kickoff event in Reno earlier this month. “There’s a clear distinction between us, and the voters will be able to know that.”

In an emailed statement to VT, Laxalt accused Cortez Masto of having the most “radical, pro-abortion position” of any senator in Nevada history. He also criticized her support for repealing bans on taxpayer-funded abortions and her opposition to a bill that would have required a health care practicioner to preserve the life of any child born alive after an abortion or attempted abortion.

“These cruel practices represent the rising tide of abortion extremism from the far left,” Laxalt said in a statement. “They have no place in civilized society and Nevadans rightfully reject them.”

Cortez Masto said in a statement that she opposed the legislation because it interfered in medical decisions that should be made by patients and doctors, and could have complicated the options for medical procedures required to save the life of a woman facing severe fetal diagnosis and hindered doctors from performing their jobs.

“Senate Republican leaders brought a bill to the floor that does nothing short of attacking a woman’s protected right to make her own reproductive health decisions,” she said at the time.

Laxalt did not directly respond to specific questions on his stance on abortion protections or the upcoming Supreme Court decision. Asked by reporters during an October campaign event about Texas’ abortion law that bans most abortions as early as six weeks, Laxalt refused to comment and has avoided stating how he would vote if the question of codifying Roe v. Wade came before the Senate.

As attorney general, Laxalt signed onto multiple legal efforts geared toward restricting abortion access and pledged to “look into” overturning Nevada’s 1990 codification of Roe v. Wade. During his run for attorney general, he also received the endorsement of anti-abortion group Nevada Right to Life.

Laxalt, who filed his candidacy last week, has been endorsed by former President Donald Trump and a host of other conservative elected officials, but faces a well-funded primary challenge from veteran Sam Brown — an outspoken anti-abortion candidate.

“It is in our American interest that we protect the lives of unborn babies,” Brown’s website reads. “As a Senator, I will oppose any federal funding of abortion and only support U.S. Supreme Court Justices who understand the importance of protecting life.”

Brown did not directly address emailed questions from VT about whether there are circumstances under which abortion should be allowed, and whether he would like to see the Supreme Court overturn or weaken Roe v. Wade protections. In an interview last week, Brown said the issue of abortion comes up occasinally on the campaign trail but that most voters he speaks with are more interested in discussing the economy or foreign policy.

“I would say it comes up, but it’s not typically one of the top one or two issues on any given day,” he said.

Wide range of abortion messaging in District 3 race

In the race for District 3, candidates hold widely differing views on abortion, ranging from a Democratic incumbent’s strong push for protecting abortion access to one Republican’s hardline anti-abortion views and attempts to limit the practice to some candidates’ near-silence on the issue.

District 3 lies at the center of Republicans’ fight to take control of the House this November. The district has been pegged as a target by the National Republican Congressional Committee, and could prove to be one of the key battlegrounds as Democrats seek to maintain their slim advantage in Congress.

But Republican control of Congress could yield a renewed push to defund Planned Parenthood. Over the past decade, Republican representatives have repeatedly attempted to strip federal funding away from the nonprofit reproductive health care agency, which provides abortion services, sexual education, general health care appointments and other services depending on location. Those attempts have failed or been blocked, but they are a part of the larger movement to prevent legal abortions.

Lee, the Democratic incumbent, has characterized this election year as a “threat to reproductive rights.”

“The decision to have an abortion is a very personal one that women make for many reasons,” Lee told VT in an interview earlier this month. “I believe that politicians don’t have a place in a doctor’s office, and that this is a decision that a woman should be empowered to make for her and her future and with what circumstances she may have.”

Though abortion rights in Nevada won’t change even if the Supreme Court guts or overturns Roe, Lee said she thinks it will motivate people to vote.

“People will get out based on this decision and that it’s under attack,” she said. “It’s important in our state and it’s important across this country.”

Lee even penned a guest column in the Las Vegas Sun in January calling on the Senate to pass the Women’s Health Protection Act. But she faced backlash from Bishop of Las Vegas George Leo Thomas who wrote a column in response in the Sun, asking Lee (and other Catholic pro-choice politicians) to abstain from taking communion.

Lee responded that her “faith — or anyone else’s — should not dictate whether or not a woman has the chance to make her own health care decisions.”

Though Lee’s calls for the Senate to codify Roe have so far gone unanswered, she said Congress must continue to work to codify the protections for abortion under Roe and to ensure there is not a “patchwork of different regulations” across the country.

As Lee has fought for protecting abortion rights, one Republican candidate vying for her seat, Noah Malgeri, has distinguished himself as a vocal anti-abortion activist.

Malgeri, an attorney and engineer, told VT in an email he believes abortions should only “be allowed when the life of the mother is in jeopardy” and said he supports the restrictive abortion laws in Mississippi and Texas.

Malgeri also expressed those views and warned that Nevada would become a destination for “abortion tourism” if Roe is overturned during a February interview on Fight for Life radio, an anti-abortion show associated with First Choice Pregnancy Services, a Las Vegas clinic that seeks to dissuade pregnant women from getting abortions.

“There’s already plans for certain states to become like abortion sanctuaries,” Malgeri said. “If Roe v. Wade is overturned, there are certain states that are already trying to create an industry and make money and profit from the fact that they will preserve abortion in their state.”

Along with his own financial support for preventing abortions through donations to First Choice, Malgeri said he supports the complete defunding of Planned Parenthood.

But other Republicans in the race, even those who appear to be the frontrunners in the primary contest, have comparatively said little on the matter.

April Becker, a real estate attorney who narrowly lost a state Senate bid in 2020 and the fundraising leader among Republicans running for the seat, has a “pro-life” view that provides slightly more daylight for abortion access than some restrictive laws being passed in Southern states.

“As a mother of three and now a new grandmother, I know that life is precious and am pro-life, with exceptions for rape, incest, and the life of the mother,” she states on her campaign website.

Her campaign declined to provide further comment for this story.

John Kovacs, who is second to Becker in fundraising among Republicans in the race, makes no mention of abortion on his campaign website, and his campaign did not respond to a request for comment.

More than 300 Democratic voters wait in line inside Sparks branch of the Washoe County Library in Sparks, Nev. on Saturday, Feb. 15, 2020, the first day of early voting. (David Calvert/VT)

A ‘dire’ situation for abortion

More than 500 proposed abortion bans and restrictions were introduced in state legislatures in 2021, Solis said, and an analysis from the pro-abortion rights reseach group Guttmacher Institute found state lawmakers enacted 108 abortion restrictions last year. Should these restrictive laws take effect amid an overturn of Roe v. Wade, Solis said the lives of millions of people could be affected.

She pointed to a proposed Missouri law that would ban abortions for ectopic pregnancies, or when a fertilized egg grows outside the uterus. An ectopic pregnancy is never viable and is often life-threatening for the mother.

Solis added that the burden of abortion restrictions often affect funding for health care options offered by organizations such as Planned Parenthood and have a greater effect on those who face systemic barriers to care, including communities of color, the LGBTQ+ community and people with low incomes. In Nevada, Planned Parenthood offers a sliding fee scale for all services for those without insurance, and also accepts many insurances.

But even with state laws continuing to protect abortion access, Solis said Nevada providers are facing down a “herculean task to take on both the patients in our state as well as those from surrounding states.”

“If it sounds dire, that’s because it is,” she said.

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