Published January 13, 2022
This summer, the Supreme Court will rule in Dobbs v. Jackson Women’s Health Organization, considering the constitutionality of a Mississippi law that prohibits abortion after 15 weeks of pregnancy. The case is the first time in 30 years that the Court has an opportunity to reverse its previous abortion jurisprudence, including Roe v. Wade and Planned Parenthood v. Casey, which prevent states from enacting any significant protections for unborn children.
Well before the Court agreed to hear Dobbs, blue states had already begun to prepare for the possibility that the Court may limit Roe and Casey. During the Trump presidency, a number of progressive states such as Illinois, New York, Rhode Island, and Vermont enacted laws making it easier for women to obtain an abortion even after fetal viability, and several of those states formally defined abortion throughout pregnancy as a “fundamental right.”
Earlier this week, New Jersey came one step closer to joining that list of progressive states, as the state legislature sent an expansive pro-abortion bill to the desk of Democratic governor Phil Murphy, who has already pledged to sign it. “With Roe v. Wade under attack, the need for this bill is more urgent than ever,” Murphy tweeted on Monday.
The legislation, S. 49, codifies an unlimited “fundamental right” to abortion, which the New Jersey supreme court has already invented under the state’s constitution. According to the bill summary, the legislation “codifies the constitutional right . . . to freedom of reproductive choice, including the right to access contraception, to terminate a pregnancy, and to carry a pregnancy to term.”
“Self-determination in reproductive choice is key to helping establish equality among the genders and to allowing all people of childbearing age to participate equally in the economic and social life of the United States and the State of New Jersey,” the law declares. It goes on to cite the supposed “constitutional right to reproductive autonomy” and claims that “restrictions [on abortion] often have a disparate impact that is predominantly felt by . . . people who are transgender or non-binary.”
In addition to declaring abortion a fundamental right, the bill pledges that the state will “advance comprehensive insurance coverage for reproductive care,” including abortions, though it allows that “certain religious employers” may request an exemption. The law provides that the state’s Department of Banking and Insurance may require all health-insurance plans “delivered, issued, executed, or renewed” in the state to cover abortion, after conducting a study to demonstrate that such a requirement is necessary. The law seems to provide space for religious exemptions, but as states such as New York have shown, exemptions from abortion- and contraception-coverage mandates are typically too narrow to protect most religious groups.
Meanwhile, the law creates additional religious-freedom and conscience concerns, including the possibility that doctors and other health-care practitioners will face legal ramifications for declining to perform abortions. Though the law doesn’t explicitly address this issue, declaring abortion a “fundamental right” seems to leave room for women to sue health-care workers and hospitals that object to performing abortions.
The new law also declares that any law or regulation already in effect or passed after the bill’s enactment “that is determined to have the effect of limiting the constitutional right to freedom of reproductive choice . . . shall be deemed invalid.” New Jersey Right to Life notes that this law, then, will supersede all of New Jersey’s previous policies governing abortion and will “prevent the passage of any new pro-life laws like parental notification, bans on late-term abortion, and even those upheld as constitutionally valid by the U.S. Supreme Court.”
With this expansive guarantee of unlimited abortion throughout pregnancy, New Jersey has shown that even if the Supreme Court undoes Roe and Casey, the pro-life movement will still face an uphill battle across the country to establish legal protections for children in the womb.
Alexandra DeSanctis is a staff writer for National Review and a visiting fellow at the Ethics and Public Policy Center.