Delaware lawmakers push abortion bill, fearing Trump's judges

Matthew Albright | The News Journal

Some lawmakers are taking steps to make sure abortion would remain legal in Delaware even if a future Supreme Court — stacked with President Donald Trump's nominees — overturns the landmark Roe v. Wade ruling that made the procedure legal nationwide.

Delaware law technically says abortion is illegal except in a few circumstances, but the 1973 ruling made that ban unenforceable. With the possibility looming that Roe could be overturned, Sen. Bryan Townsend and other legislators want to formally create legal protections for women who want to get an abortion.

"We should have done this decades ago," said Sen. Bryan Townsend, D-Newark. "I believe that we have a responsibility to women across Delaware not to have their rights be invalidated by an extreme shift in Washington."

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Abortion is one of the most emotionally-charged debates in American politics, pitting those who believe the practice is murder against those who believe women should have control of their own bodies.

The current state law says abortions are only allowed if the mother's life is at risk; if the pregnancy is a result of rape or incest; or if there is a "substantial risk" that the child will have serious deformities or disabilities. The unenforceable law also says that pregnancies cannot be terminated after 20 weeks and requires parental consent if the person seeking the abortion is under age 18.

Townsend's bill would rewrite the law to make abortion more broadly legal. Practically speaking, not much would change — Delaware already follows the framework of Roe v. Wade and similar precedents.

During the campaign, Trump promised to appoint conservative Supreme Court justices who would vote to overturn the precedent. He already placed Neil Gorsuch on the seat once held by conservative Antonin Scalia, and many observers expect he will get to name at least one more Supreme Court justice — possibly several.

If Trump is able to replace a judge who favors Roe v. Wade with one who opposes it, the precedent could be overturned or undermined. That would mean Delaware's nascent restrictions on abortion would be enforceable again.

"We want to protect these rights for women here in Delaware," said House Majority Leader Valerie Longhurst, D-Bear. "This bill will ensure that a woman’s right to make these health care decisions are not interrupted or co-opted by government."

There are 20 members of the General Assembly who have signed onto the bill as co-sponsors. They are mostly Democrats, but there are also two Republicans — Sen. Cathy Cloutier, R-Heatherbrooke, and Rep. Deborah Hudson, R-Fairthorne.

"I have a lot of confidence that my colleagues are going to vote for a framework that the dramatic majority of people support," Townsend said. "I think most legislators are going to be where most Delawareans are."

Sen. Brian Pettyjohn, R-Georgetown, said he's received 300 calls from constituents, and all but six "strongly opposed" the legislation. He questions why Democrats would be stirring a fight over abortion in the face of other, more urgent issues, like the state's $400 million budget deficit or the surge in overdose deaths from heroin.

The current U.S. Supreme Court, even with Gorsuch, is unlikely to overturn Roe v. Wade, Pettyjohn said.

"Why are we bringing up this flashpoint of a political issue when we've got these pressing concerns in front of us?" he said. "We're facing a fiscal cliff right now on the state level and here we are debating decided case law."

Delaware Republicans often criticize Democrats for focusing on social issues at the expense of tackling economic problems.

Townsend said fiscal woes shouldn't prevent the General Assembly from tackling other important subjects. He points out that supporters of the death penalty — mostly Republicans — have no problem pushing for a bill to reinstate capital punishment this year.

Contact Matthew Albright at malbright@delawareonline.com, (302) 324-2428 or on Twitter @TNJ_malbright.