Progressive abortion rights activists want to go much further in advancing abortion protections, and are pushing Democrats nationally and at the state level not to put any limits on the procedure.
As abortion rights supporters increasingly look to ballot initiatives in red and purple states, there are internal divisions over what limits, if any, they should be proposing.
Most Democrats, including the Biden administration, say they want to codify the protections that existed under Roe v. Wade, which made abortion legal to the point of viability but allowed states to restrict it later in pregnancy.
But progressive advocates for abortion access say Democrats should be aiming higher.
Rachel O’Leary Carmona, executive director of Women’s March, characterized the focus on simply bringing back Roe’s protections as too narrow and “backward looking.”
“Roe is gone. It’s gone, and it’s not coming back in the form that it was in,” O’Leary Carmona said, urging Democrats to think bigger and broader.
“Public opinion on abortion has shifted and it’s shifted in favor of abortion. So now is the time for Democrats to strike when the iron is hot and put forth a vision that is of a future where we can all win,” she said.
Democratic leaders argue Roe’s “viability” standard is consistent with where most of the country stands on abortion.
“This is our position,” said Rep. Diana Degette (D-Colo.), chairwoman of the House pro-choice caucus. “The parameter set forth in Roe v. Wade. That’s the position, and actually a great majority of Americans agree with that too.”
When pressed in a recent interview about how long into a pregnancy Democrats would support abortion, Vice President Kamala Harris repeatedly referred to the Roe standard.
“We need to restore the protections of Roe v. Wade,” Harris said on “Face the Nation,” but did not articulate a specific time limit.
In a CNN interview on Monday, California Gov. Gavin Newsom (D) said he and many other Democrats support abortion rights until viability.
But he also said the government shouldn’t be involved in the decision, and called out Republicans like former President Trump for what he said were “false flag” attacks by claiming Democrats support abortion up to and after birth.
“It’s a canard. It’s a political thing. It’s total BS,” Newsom said.
There is some concern that going further than Roe could risk alienating more conservative voters, and by not articulating a limit could open Democrats to attacks from Republicans about supporting unlimited abortion.
But some activists and lawmakers say those attacks are happening anyway, regardless of a politician’s actual position.
They argue limiting abortion to viability is an unnecessary compromise with a GOP that wants to end all abortions, and will take away the full freedom of choice.
“I think that the Republican Party in general has done a really good job of framing the issue in a way that has Democrats back on their heels,” said O’Leary Carmona.
In Missouri for instance, groups wanting to restore abortion access have submitted multiple versions of a ballot initiative for 2024, most of which include some kind of viability limit.
But the inclusion of such language led the abortion rights movement to fracture.
The local Planned Parenthood affiliate earlier this year stopped working to help pass the initiative, arguing it would harm patients and allow lawmakers to interfere and continue to restrict abortion.
Abortion is almost entirely banned in Missouri, which was the first state to enforce its “trigger” law in the aftermath of the Dobbs decision last year.
According to medical experts, the concept of viability is more of a range than a hard line in the sand. Viability addresses whether a fetus might survive outside of the uterus, but there is no medical test to determine it.
Most abortions are performed around 12 weeks of pregnancy, and later abortions are extremely rare. Only 1 percent of all abortion occur after 21 weeks of pregnancy, according to health research group KFF, and are usually done in cases of fetal abnormality or when the life of the mother is in danger
The American College of Obstetricians and Gynecologists (ACOG) described viability as a complex calculation with multiple variables, including gestational age, delivery circumstances and genetics.
“Policy making around viability interferes in the patient–physician relationship. ACOG strongly opposes legislation or regulation of the clinical definition of viability,” the group said.
Mary Ziegler, an abortion historian and professor of law at the University of California, Davis said viability was a legal compromise from Justice Harry Blackmun, who sought a middle ground between abortion supporters and opponents when the Supreme Court was deliberating Roe v. Wade.
In the post-Roe era, Ziegler said that standard can still be politically expedient for Democrats.
“Viability has the advantage of something that people already know about. Polling suggests Americans like Roe, let’s just codify Roe,” Ziegler said. “There’s a sort of automatic quality to it that I think is appealing to people in states that … are not by any means kind of uniformly progressive.”
Before Roe was overturned, Ziegler said there was more unanimity between moderate Democrats and progressives about not being too critical of the decision because it could fuel backlash to undermine it.
But now, the circumstances have changed and it makes sense for there to be tensions between the two sides, she said. Still, there is an acknowledgement that abortion protections can move more easily in the states, and what works in one area doesn’t necessarily work nationwide.
“I live in Amarillo, Texas. If we could get legislation moved forward that allowed abortion protected in a certain [point], that would be a win,” said O’Leary Carmona. “That would be a loss in Los Angeles. I just don’t think that we can talk about wins or losses in absolute terms.”