Conservative state lawmakers passed a surge of unconstitutional pre-viability abortion bans this year in an effort to tee up a challenge to Roe v. Wade. These included everything from bans on the safest, most common form of second-trimester abortion to laws that would outright re-criminalize abortion. So far, the federal courts have proven to be the necessary firewall preventing conservatives from enshrining these restrictions into law. But Republicans spent most of 2018 vigorously packing the federal courts with judges they believe to be ready and willing to roll back abortion rights as far as possible – so that barrier might not hold in 2019.
Here’s a sample of some of the worst anti-choice restrictions passed in the states this year.
Dilation and evacuation bans
“Dismemberment abortion” bans target dilation and evacuation (D and E) procedures, the most commonly used method of second-trimester abortion. D and E bans have been enacted in nine states in the past four years: Alabama, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Oklahoma, Texas, and West Virginia. With the exception of Mississippi and West Virginia, courts have blocked or temporarily enjoined the laws in each.
In April, Kentucky Gov. Matt Bevin (R) signed HB 454, banning D and E procedures when the probable post-fertilization age of the fetus is 11 weeks or greater. Attorneys for the American Civil Liberties Union (ACLU) and ACLU of Kentucky filed a complaint, arguing the law violates patients’ federal constitutional due process rights to privacy and bodily integrity. The ACLU filed the lawsuit on behalf of EMW Women’s Surgical Center, the only remaining abortion clinic in the state. The law – which went to trial last month – will remain blocked while the case proceeds.
Louisiana and Mississippi this year enacted laws banning all abortion after 15 weeks’ gestation. Both bills were drafted with the help of the Alliance Defending Freedom (ADF), a conservative legal advocacy firm that targets reproductive and LGBTQ rights. Mississippi, where D and E abortions are already banned, enacted HB 1510 in March, which was quickly blocked. A federal judge last month struck down the 15-week ban in Mississippi, declaring the law “unequivocally” unconstitutional. The state of Mississippi has filed an appeal to the U.S. Court of Appeals for the Fifth Circuit.
Louisiana enacted SB 181 in May with the stipulation that the law – which would disproportionately affect D and E procedures – would only take effect upon any final decision of the U.S. Court of Appeals for the Fifth Circuit upholding Mississippi’s ban.
Ohio lawmakers took advantage of the lame-duck session to pass SB 145, a measure that would make performing a D and E abortion a felony. The bill – which passed the state senate during the summer of 2017 – saw final passage this week after more than a year of inactivity. On December 21, Ohio Gov. John Kasich signed the bill into law.
Eleven other states this year considered measures that would ban the D and E procedure, effectively outlawing abortion past 14 weeks’ gestation.
Six-week “heartbeat” bans
So-called heartbeat bans seek to outlaw abortion as soon as a fetal heartbeat is detected, which can occur as early as six weeks into pregnancy and well before many people even realize they are pregnant. Heartbeat bans – which amount to near-total abortion bans—are clearly unconstitutional and have been blocked in Arkansas and North Dakota.
In May, Iowa became the third state to enact a fetal heartbeat abortion ban. The measure provides a narrow exception in cases where a person’s life is in danger, and for cases of reported rape and incest. Planned Parenthood and the ACLU of Iowa filed a complaint, and the law was temporarily blocked over the summer. A district court judge earlier this month heard arguments over whether the law should be declared unconstitutional without a trial. Regardless of the ruling – which is expected in the next month or so – the case will likely end up at the Iowa Supreme Court.
Not content with effectively banning most abortions at 14 weeks, lawmakers in Ohio used the lame-duck session to push through yet another heartbeat abortion ban (they’ve been trying since 2011). Except in cases of medical emergency, HB 258 would make it a felony for providers to perform or induce an abortion when a fetal heartbeat has been detected. The bill was amended in state senate committee to clarify that the use of a transvaginal ultrasound to detect the fetal heartbeat would not be required. This would effectively ban abortion anywhere from nine to 12 weeks’ gestation – the time at which an abdominal ultrasound can be used to detect a fetal heartbeat. It’s worth noting that Ohio lawmakers in 2016 passed a heartbeat bill along with a measure ending access to abortion after 20 weeks’ gestation. Kasich was able to appear more moderate than he actually is by vetoing the six-week abortion ban while signing the 20-week ban. On December 21, he again vetoed the heartbeat ban while signing the D and E ban. The state legislature failed to override the veto.
Ten other states this year considered measures to criminalize the performance of an abortion when a fetal heartbeat is detected.
Fetal personhood
Personhood laws seek to grant constitutional rights to fertilized eggs, zygotes, embryos, and fetuses. Most personhood laws outlaw abortion with no exception, and can also ban many forms of contraception and in vitro fertilization. These laws can come in many different forms, from constitutional amendments declaring the right to life from the moment of conception to the issuance of fetal death certificates for miscarriages and aborted fetuses.
In April, Arizona enacted SB 1393, requiring courts in a divorce proceeding to award in vitro embryos to the spouse that intends to allow the embryos to develop to birth. Critics of the law have described it as a backdoor attempt to grant embryos personhood.
In 2017, lawmakers in Alabama passed a measure proposing an amendment to the state constitution declaring the public policy of the state to recognize and support the sanctity of “unborn life” and the rights of “unborn children,” including the right to life. The amendment was on the ballot during the 2018 midterms, and Alabama voters overwhelmingly approved the measure to grant constitutional rights to fertilized eggs and fetuses. While the amendment doesn’t actually criminalize anything, it does pave the way for far more restrictions.
West Virginia lawmakers this year had a constitutional amendment of their own. The “No Constitutional Right to Abortion Amendment” passed the state legislature in March and was added to the ballot in November. The amendment – which voters approved – declares that nothing in the state constitution “secures or protects a right to abortion or requires the funding of abortion.” While the amendment doesn’t specifically grant rights to fetuses, it acknowledges “legislative authority to protect innocent life.” As with Alabama’s ballot measure, the amendment doesn’t outlaw abortion, though it all but guarantees more restrictive measures to come.
Sixteen other states this year considered measures to recognize or classify fertilized eggs and fetuses as persons.
Oh, we’re not done
If you think the attacks on reproductive rights this year were a mess, just wait until 2019. “Heartbeat” abortion bans have already been pre-filed in Kentucky, Missouri, and South Carolina. Constitutional amendments granting rights to fetuses have been pre-filed in South Carolina and Texas. And a total abortion ban punishable by life imprisonment – for providers and patients – has been pre-filed in Oklahoma. It’s. Not. Even. January.
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