Is New Jersey about to face a reckoning over abortion access?

By Joey FoxMay 20 2022

New Jersey Globe

Gov. Phil Murphy signs the Freedom of Reproductive Choice Act on January 13, 2022, with Senate President Nicholas Scutari, former Senate Majority Leader Loretta Weinberg, and former Assemblywoman Valerie Vainieri Huttle.

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When Gov. Phil Murphy debuted his proposals for expanding abortion access in New Jersey last week, it was something of a triumphant moment for the governor and his allies. With the U.S. Supreme Court potentially prepared to overturn Roe v. Wade nationwide, Murphy could show that he and New Jersey Democrats were fighting back.

But the proposals Murphy announced, which include an insurance mandate for abortions, the creation of a state reproductive health fund, and an expansion of the pool of potential abortion providers, don’t face an easy path to becoming law.

In order to make it to the governor’s desk, any bill expanding abortion access will have to get past nervous Democrats, skeptical Republicans, and a legislative leadership team chiefly concerned with keeping their wide-ranging caucuses happy. Each of these groups could sink Murphy’s proposals before they even get off the ground – and all have so far shown reluctance to say anything at all about where they stand.

New Jersey is a blue state, and one that both polls and elections have consistently shown supports abortion. Yet with abortion access already codified into state law thanks to the Freedom of Reproductive Choice Act passed earlier this year, it’s simply not clear there’s an appetite for further action from some crucial members of state government.

That creates a potential conundrum for progressive politicians and advocates who want to take a stand and send a message against the Supreme Court’s decision. 

The proposals outlined by the governor would certainly send that message, as well as expand abortion access in ways that progressive groups have long hoped for. They also could create a major rift in the state Democratic Party and lay bare the ways New Jersey’s politics aren’t as progressive as they’re cracked up to be. And even after a long battle, some or all of the proposals might still go down in failure.

“Do I think that discussion will create hard feelings on both sides? Yes,” said former Senate Majority Leader Loretta Weinberg (D-Teaneck), a longtime crusader for abortion access. “I don’t have to be prophetic to figure that out.”

Given this fraught path forward, the governor and pro-choice legislators have to confront a key question: which fights are worth having?

What the proposals do

A lot of ink has already been spilled about two of the proposals, because both were in last year’s Reproductive Freedom Act – the prior name of the Freedom of Reproductive Choice Act – before being removed upon facing significant legislative resistance.

One would create a mandate that insurers in New Jersey cover abortions with no out-of-pocket cost to the patient. That’s something the Freedom of Reproductive Choice Act addressed by authorizing the state Department of Banking and Insurance to conduct a study on the feasibility of an insurance mandate, but Murphy’s new proposal would override that study and simply put one in place.

The second relaunched proposal is to expand the pool of those who can perform abortions to include advanced practice nurses, midwives, and physician assistants.

As for the other two proposals, both are entirely new: one to create a state reproductive health fund that would help uninsured women pay for abortions and give abortion providers access to increased security, and another to defend New Jersey’s abortion providers and patients from legal action and investigations initiated by other states.

None of the four proposals have been put into writing yet, so more precise delineations of what they might do are still up in the air.

According to Planned Parenthood Action Fund of New Jersey’s vice president for public affairs, Kaitlyn Wojtowicz, Murphy’s plan aligns almost perfectly with what her organization hopes to see happen in New Jersey.

“I’m sure we will have suggestions, but broadly speaking, the proposals that were laid out were really exciting and pretty much exactly what we would have asked for,” Wojtowicz said. “We see these proposals as increasing access and making sure that when someone needs an abortion, that they can actually exercise [their right] to it.”

On the other hand, Marie Tasy, the executive director of the anti-abortion group New Jersey Right to Life, harshly opposed Murphy’s plan and said it would make New Jersey “a sanctuary state for abortion on demand.”

“The provisions that he is looking to enact are going to put women and young girls in jeopardy,” Tasy said. “I think he is clearly out of step with the majority of New Jersey citizens’ views on this issue, and I think time will show that he’s on the wrong side of history.”

These battle lines, between Right to Life on one side and Planned Parenthood on the other, are not exactly surprising. But what’s harder to determine is where on the broad spectrum of abortion views New Jerseyans actually stand, and how they might feel about Murphy’s proposals.

What New Jerseyans think

Polling about reproductive health issues is notoriously tricky, because so much depends on the framing of the poll question. Asking whether Roe v. Wade should be upheld, whether abortion should be legal in most or all cases, or whether abortions should be allowed after a certain week of pregnancy will all likely produce different responses with different implications.

That being said, the limited polling available does suggest New Jersey is firmly in favor of allowing abortions.

According to a New York Times analysis from earlier this month based on a number of different national surveys, 62% of New Jerseyans think abortion should be “mostly legal” and 33% think it should be “mostly illegal,” making New Jersey the 10th-most abortion-friendly state in the country.

Those numbers are corroborated by a March 2021 poll commissioned by the progressive National Institute for Reproductive Health, which found that 66% of New Jersey voters believed abortion should be “legal in either all or most cases,” and 63% of voters thought their state legislator should work to “​​protect and expand access to abortion” instead of restricting access. (Notably, the poll was conducted before the legislature passed the Freedom of Reproductive Choice Act.)

Beyond polling, New Jersey’s history of voting for pro-abortion access politicians is indicative of the state’s views on abortion. Not only has Murphy, an avowedly abortion-friendly politician, won the governorship twice, even Republican gubernatorial nominee Jack Ciattarelli went on the record during last year’s election as saying he supported upholding Roe v. Wade.

But none of this necessarily speaks to how New Jerseyans feel about Murphy’s specific plans for reproductive health funds, insurance mandates, and the like. And even if the proposals do eventually get polled, there’s no guarantee the phrasing of the poll questions will satisfy everyone.

“I only hope that, if a poll is done, it’s an honest poll, and it asks the right questions and not questions that people really are not able to understand what is going to happen,” Tasy said. “You can ask a question all you want, but you need to really provide enough information so that people understand.”

According to Micah Rasmussen, the director of the Rebovich Institute of New Jersey Politics at Rider University, it may well be that some of the policies Murphy is advocating for are popular among the general public in a way they haven’t been in the state legislature.

“It’s reasonable to think that a lot of these proposals that may have had some hesitation on the part of legislators probably enjoy broad public support,” Rasmussen said. “It’s important to figure out which ones those are, and which ones those aren’t.”

What legislators have said

For now, though, legislators and advocates are both flying blind. And based on numerous conversations with the legislators most likely to be on the fence about supporting or pushing through abortion legislation, there’s a lot of trepidation.

Senate President Nicholas Scutari (D-Linden) and Assembly Speaker Craig Coughlin (D-Woodbridge) released a statement during Murphy’s press conference last week that broadly supported legal abortions in New Jersey but didn’t say anything specific about Murphy’s plan. Another key figure, State Health Committee Chair Joseph Vitale (D-Woodbridge), said that it was too early for him to take a stance on any as-yet unwritten proposals. 

“Theoretically, we support access to health care for everyone, no matter what it is,” Vitale said. “[But] until there’s real language, I can’t comment on specifics.”

As for three moderate legislators who broke with their parties on the Freedom of Reproductive Choice Act earlier this year – State Sen. Fred Madden (D-Washington), who voted no, and State Sen. Jon Bramnick (R-Westfield) and Assemblywoman Gabriela Mosquera (D-Gloucester), who abstained – all were noncommittal.

“I am in favor of Roe v. Wade, I’m against overturning Roe v. Wade,” Bramnick said. “Once you start going further, then each of those proposals – I’ve got to evaluate on its own.”

Six total Democrats either abstained or voted against the bill, five of them white male legislators. That could end up adding a complex dynamic to the debate over Murphy’s new proposals; the assemblymembers who joined the governor for his announcement were mostly women and mostly people of color, meaning that there might be a stark racial and gender divide between supporters and opponents of future legislation.

The Republican caucus, of course, will largely be opposed to any legislation expanding abortion in New Jersey. As soon as Murphy made his announcement last week, Senate Minority Leader Steven Oroho blasted his proposals as a “radical approach that is far out of line with what most families believe is reasonable.”

And, importantly, Republicans have their biggest caucus in years this session after winning one additional seat in the Senate and six in the Assembly in the 2021 elections.

That makes the math for passing any new abortion legislation complicated. The Assembly passed the Freedom of Reproductive Choice Act with 45 legislators voting in favor, six of whom lost re-election in 2021 and were replaced by Republicans.

That’s not even accounting for the fact that the bill that passed was already a compromise to assuage legislators nervous about insurance mandates and nurses performing abortions; had the original Reproductive Freedom Act come for a vote, its total likely would have been even lower. In other words, given what took place last session, it’s hard to picture how Murphy’s proposals would get the necessary votes this time around.

But as both Wojtowicz and Rasmussen pointed out, the Supreme Court opinion could be a massive factor. When legislators were debating abortion last year, the fall of Roe v. Wade was purely hypothetical; now, with the leaked draft opinion showing it’s likely, legislators might approach the issue very differently.

“Well-intentioned, good-meaning, smart people simply thought that the Supreme Court wouldn’t go to overturn Roe, and unfortunately they’ve now shown their hand that they will be doing that,” Wojtowicz said. “So I think that has caused folks to sit up and take notice, and see what ways we can protect and expand access here in New Jersey.”

Rasmussen added that it was incumbent on pro-abortion groups to convince legislators that addressing abortion was something that needed to happen, regardless of their personal feelings.

“We’d all rather not have to deal with this,” he said. “But unfortunately, five members of the Supreme Court have put it front and center on our plates, and we are all going to have to get a lot more comfortable with this. Your personal reservations aside and your personal skittishness aside … it’s important to get this right.”

What comes next?

There’s no question that Murphy’s plan is a materially consequential one. If ultimately enacted, it would significantly increase New Jersey’s investment in abortion access and make New Jersey a “haven” – a word used by both Tasy and Wojtowicz, with hugely different implications – for people around the country seeking abortions.

But it’s also not hard to see the symbolic importance of expanding abortion in New Jersey right as the Supreme Court strikes down 50 years of precedent. Even with abortion protected in the state via the Freedom of Reproductive Choice Act, progressives and abortion advocates no doubt want state politicians to eschew complacency and continue their reproductive health work.

That could take the form of passing Murphy’s entire package, though the legislative math makes that unlikely. It could mean stepping back from legislation and instead focusing energy on a constitutional question to protect abortion, which was proposed by the Record’s Charles Stile but hasn’t seemed to catch on yet among state leaders.

Or it could end up being like most debates in Trenton: long, difficult, and often emotionally complex.

“Abortion is a deeply personal issue and people have a range of feelings on it,” Wojtowicz said. “We hope that legislators can see that they can have their own personal feelings and values around abortion, but really this is about them stepping up to protect the people in New Jersey.”

Tasy, meanwhile, said she hoped the proposals fade into obscurity – and noted that, if they don’t, all 120 members of the legislature will be up for re-election next year and will have to answer to voters.

“Hopefully cooler heads will prevail,” she said. “We have another election next year… I would think that it would be wise of these legislative leaders to not be advancing these types of measures in New Jersey. But time will tell.”

If and when Roe v. Wade does fall, it will be a confusing time around the country. Anti-abortion groups will have to contend with the reality they’ve made happen; pro-abortion groups will need to find entirely new strategies to counter conservative policies; and women will face impossible choices about what to do if they find themselves pregnant.

In New Jersey, thanks in no small part to Weinberg and the Freedom of Reproductive Choice Act, that chaos will be muted. Weinberg said that, no matter what else the governor and state legislature are able to accomplish, abortion is legal in New Jersey and will stay that way.

“We’ve won it in New Jersey,” she said. “We have a law that says women are entitled to abortion care, and that’s the important thing.”

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published this page in News and Politics 2022-05-22 05:14:48 -0700