Seizing an opportunity, conservative lawmakers push abortion bans to test Roe
Seizing their best opportunity in decades to sharply restrict abortion nationwide, lawmakers in seven states have voted for sweeping prohibitions this year, passing laws they hope will convince the Supreme Court to reconsider the 46-year-old precedent set by Roe v. Wade.
Alabama took the most far-reaching action this week, voting to criminalize almost all abortions and galvanizing activists on both sides of the issue who now foresee the loss of Roe v. Wade as a realistic possibility for the first time. Alabama Governor Kay Ivey signed the bill Wednesday evening.
“We should be planning for Roe to be overturned. I’d love to be wrong,” said Rebecca Hart Holder, executive director of NARAL Pro-Choice Massachusetts.
In addition to Alabama’s ban, four states — Kentucky, Mississippi, Ohio, and Georgia — have passed laws that would ban abortion as soon as the heartbeat of the fetus can be detected, around six weeks. Arkansas and Utah banned abortion after 18 weeks.
None of the laws are in effect in those states, however, and reproductive-rights advocates stress that abortion remains legal in all 50 states, as the new laws are challenged in court. Courts have already struck down so-called heartbeat bills passed in prior years in two additional states, Iowa and North Dakota.
The hotly debated issue is sure to roil the 2020 presidential race and was immediately seized upon by Democratic contenders vying for the nomination as evidence of Republican disrespect for women. But energy from the right, especially single-issue antiabortion voters, has often bolstered President Trump, who has consistently delivered for their cause. They are certain to form a key part of his base in 2020.
“It is clearer than ever that Roe is far from being settled law in the eyes and hearts of the American people, and this is increasingly reflected in state legislatures,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, a national organization that opposes abortion.
Abortion opponents began gaining traction in increasingly conservative state legislatures in 2010, and have been further emboldened by a surge in antiabortion sentiment since the 2016 elections, noted Clarke Forsythe, senior counsel with Americans United for Life.
Trump ran as an abortion opponent, wooing conservative audiences by promising to appoint Supreme Court justices who would overturn Roe v. Wade. As president, he has appointed two conservatives to the Supreme Court, tilting it in a direction that gave many abortion opponents hope.
And efforts to restrict abortion rights in red states, and expand them in blue states, show similar expectations, Forsythe said.
“Both are showing they expect the Supreme Court to overturn Roe sooner or later,” he said. The only people who don’t seem to expect the court to move quickly on Roe are the justices themselves, he joked.
“Up to now, the court hasn’t given any sign, cue, or indication that’s it’s interested in addressing the abortion issue at all,” said Forsythe, who noted there are four cases before the Supreme Court that could be taken up anytime.
The new Alabama law is the most stringent state legislation passed since the Supreme Court’s Roe v. Wade ruling made abortion legal.
The new law criminalizes abortion, except when the mother’s life is at serious risk, and makes it a felony, punishable with a term of up to 99 years in prison, for any doctor who performs an abortion. There are no exceptions for cases of rape and incest.
The bill’s sponsor said it was designed that way, in order to directly target Roe v. Wade. That was bitter vindication for some abortion-rights advocates, whose dire warnings about Roe — during the 2016 election and its aftermath — were often dismissed. Ilyse Hogue, the president of NARAL Pro-Choice America, noted that many assured that Roe was settled law, as recently as the heated debate over the confirmation of conservative Supreme Court Justice Brett Kavanaugh.
“When women stood up in record numbers to fight Kavanaugh’s nomination, propelled by his alarming record and Trump’s promise to nominate jurists committed to criminalizing abortion and punishing women, we were told we were ‘hysterical’ because Roe was settled law,” Hogue said. “Not six months later, we are battling measures where the stated goal is exactly that: outlawing abortion.”
The Alabama Senate has only four women — all Democrats — leading some observers to criticize the passage of an abortion ban by all-white, all-male, all-Republican majority. However, the bill originated with a female sponsor in the House, and Alabama voters provided a mandate for opposition to abortion in November, overwhelmingly approving a constitutional amendment to “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”
That amendment is already causing legal repercussions, however, said Adrienne Kimmell, vice president of communications for Naral Pro-Choice America. She pointed to an Alabama judge who recently allowed a man — and his aborted fetus — to sue the clinic where his girlfriend ended her pregnancy. Because of the constitutional amendment, she noted, the judge recognized “Baby Roe” as a person and a co-plaintiff in the wrongful death suit.
“To me, that is really exemplary of the intended and/or unintended consequences of these really drastic policy changes,” said Kimmell. “The man — and the fetus that no longer was — actually had more rights than the woman in Alabama.”
Meanwhile, other states are trying to ban abortion so early in gestation that it would no longer be feasible for many women who are just learning they are pregnant, advocates say. (Pregnancy math is calculated based on menstrual cycles; by the time a woman misses a period and can take a pregnancy test, she is already at least four weeks pregnant.)
“This is the culmination of what has been happening for decades,” said Jennifer Dalven, director of the ACLU Reproductive Freedom Project, which is pursuing legal challenges to new abortion laws in several states. However, she said she fully expects lower courts to block many of these laws, calling them “blatantly unconstitutional” under Roe v. Wade, which allowed for abortion, with some restrictions, up until the time of viability.
“We’re winning in a lot of the court cases. But to have five states pass bans is a real step backward,” said Dalven.
However she noted that states like Massachusetts are working to shore up abortion laws to expand access to abortion. Reproductive-rights advocates are pushing a bill known as the “Roe Act” that would eliminate the requirement that minors get a parent’s consent for an abortion and would allow abortions later in pregnancy for fetuses with anomalies that are not expected to survive. A similar attempt in Rhode Island failed to pass this week.
“The states are really divided,” said Dalven. “This has been true for some time but it is increasingly so — that access to abortion will depend on where you live and how much money you have.”