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Bills in Georgia, Ohio, and Alabama show we’re in a watershed moment for the abortion debate.
The governor of Georgia signed into law one of the strictest abortion bans in the country. The sponsor of an anti-abortion bill in Ohio made headlines by falsely claiming that it’s possible to transplant an ectopic pregnancy into the uterus. And the Alabama state Senate erupted in shouting after Republicans removed exceptions for rape and incest from an anti-abortion bill.
All these developments happened just this week, a new level of activity in a year that has already seen a raft of abortion restrictions pass — and some states move to shore up abortion access in response. Anti-abortion groups and legislators have been backing more aggressive restrictions since President Trump’s election, but their efforts have ramped up in 2019.
Four “heartbeat” bills, like Georgia’s, that would ban abortion as early as six weeks, have passed this year alone, and total bans on abortion are under consideration in Alabama and elsewhere. Meanwhile, supporters of this kind of legislation have stated openly that their goal is to challenge Roe v. Wade.
“The gloves are off” among abortion opponents, Kristin Ford, the national communications director for NARAL Pro-Choice America, told Vox. “They feel like they have the wind at their backs and they don’t have to dance around their true intentions anymore.”
Abortion rights supporters have backed legislation of their own, including efforts in New York and Virginia to lift some abortion restrictions. These efforts, too, have generated debate as state abortion laws become an increasingly visible part of the national conversation.
The Georgia ban, like others of its kind, will likely be challenged in court. But the fact that it was signed in the same week that nationwide controversy broke out on restrictions in at least two other states is a reminder that the abortion debate has reached a place that’s unprecedented in recent memory, with multiple states poised to outlaw the procedure as the federal protections enshrined in Roe hang in the balance.
State legislatures around the country are introducing stricter and stricter anti-abortion laws
During his presidential campaign, Trump promised to appoint Supreme Court justices who would overturn Roe v. Wade. So after he took office, abortion opponents in state legislatures began passing increasingly restrictive abortion laws, attempting to ban the procedure at 15 weeks or even earlier. They were responding to the prospect of a friendly Supreme Court, as well as Trump’s appointments of anti-abortion judges to lower federal courts.
After Justice Brett Kavanaugh, widely seen as a potential deciding vote to overturn Roe, was confirmed in October 2018, restrictions began to proliferate even more. “State legislators around the country are taking signals from Trump being in the White House and Kavanaugh being on the court,” Rachel Sussman, the national director of state policy and advocacy at Planned Parenthood Act, told Vox in April.
The result has been a growing number of bills around the country that would ban abortion in almost all cases, subjecting doctors and, potentially, women themselves to criminal prosecution. Some of these bills go further than ever before (at least in recent memory) in restricting abortion, while others may be based on inaccurate medical information. They’ve generated not just intense debate but also some confusion as residents and even advocacy groups try to figure out what the bills would actually do.
Here’s a breakdown of the abortion restrictions that have captured the most attention in recent days:
Georgia’s “heartbeat” law
With Gov. Brian Kemp’s signature on Tuesday, Georgia became the fourth state this year to pass a “heartbeat” bill, which bans abortion as soon as a fetal heartbeat can be detected. This can be as early as six weeks’ gestation, before many women know they are pregnant. The bill contains exceptions for medical emergencies, as well as for rape and incest, but someone who wanted to obtain an abortion after rape would have to file a police report.
The Georgia law became the focus of nationwide attention prior to its passage, when celebrities including actress and #MeToo advocate Alyssa Milano spoke out against it. Several TV and film production companies have responded to the ban by announcing they will cease operations in Georgia, which had become a popular site for filming due to its tax incentives, according to NBC News.
The law also gained added attention on Tuesday when Mark Joseph Stern of Slate reported that it could lead to criminal prosecutions for women who perform their own abortions using drugs, who miscarry, or even who travel out of state to have abortions.
But reproductive rights groups aren’t sure if the law would in fact be used in this way. “It seems to be a stretch to what’s actually in the law and I’m really confused as to whether or not this would be possible,” Elizabeth Nash, the senior state issues manager at the Guttmacher Institute, told Vox.
Though some anti-abortion lawmakers, notably in Texas, have recently called for criminal prosecution of women seeking abortion, most anti-abortion groups have historically been against the idea. For example, the anti-abortion group Americans United for Life opposes “the use of the criminal law to punish women for any acts during pregnancy toward their unborn child,” Clarke Forsythe, senior counsel for the group, told Vox.
He called the notion that the Georgia bill could be used to prosecute women “ludicrous,” arguing that “there’s a long tradition in Georgia law that women can’t be prosecuted for abortion.”
Meanwhile, some abortion rights advocates say the bill is concerning enough regardless of whether women can be charged under it.
“We know that doctors could face serious jail time; we know that women would have to have this police report if they were claiming an exception,” Ford said. “There’s a lot to be really concerned about on the face of the bill.”
Ohio’s ban on insurance coverage for abortion
A bill recently introduced in Ohio in April would ban most private insurance coverage of abortion. It gained added attention this week when Jo Ingles of the Ohio radio station WOSU reported on an unusual provision: The bill allows insurance companies to cover “a procedure for an ectopic pregnancy that is intended to reimplant the fertilized ovum into the pregnant woman’s uterus.”
An ectopic pregnancy occurs when a fertilized egg implants in the fallopian tube rather than in the uterus. Such pregnancies are almost never viable, and the only reliable treatment is an abortion, as Kayla Epstein reports at the Washington Post. It is not possible to remove the egg from the fallopian tube and reimplant it into the uterus. If left untreated, an ectopic pregnancy can be fatal.
It is not clear why the bill’s sponsor, Republican state Rep. John Becker, chose to include a provision in the bill for coverage of a procedure that, as Epstein points out, does not exist. Becker has not responded to Vox’s request for comment.
But the provision may speak to a larger issue with the bill. Because it bans coverage for “drugs or devices used to prevent the implantation of a fertilized ovum,” reproductive rights groups say it could eliminate coverage for some forms of contraception, like birth control pills or IUDs.
Becker told WOSU that his bill was not intended to target birth control.
“When you get into the contraception and abortifacients, that’s clearly not my area of expertise,” he said, before speculating that “if it were true that what we typically know as the pill would be classified as an abortifacient, then I would imagine the drug manufacturers would reformulate it so it’s no longer an abortifacient and is strictly a contraceptive.”
As New York Times editorial board member Lauren Kelley noted earlier this week, the Ohio bill isn’t the first anti-abortion measure to stand on shaky medical ground. Eric Johnston, an attorney who helped draft the Alabama bill, told AL.com in March that “a man and woman can have sex and you can take her straight into a clinic and determine an egg and sperm came together.”
In fact, as Kelley has written, the most sensitive pregnancy tests cannot detect anything until about a week after fertilization. And some reproductive rights advocates see comments like Becker’s as part of a larger trend toward more aggressive language and legislation by abortion opponents.
Ford sees this trend as inspired in part by Trump, who said on the campaign trail that he supported punishing women for getting abortions (a position he later walked back).
“With Trump sort of at the head of this movement, there’s just this level of cruelty and this sort of terrifying ramp-up of the rhetoric,” she said. “Every time you think it can’t get more extreme, it does.”
Others argue that the increased pace of restrictions has to do with public opinion — “I think we see American public opinion moving in favor of pro-life and against abortion,” Forsythe said.
In general, a majority of Americans believe abortion should be legal in most or all cases. But public opinion has grown more polarized over time, with more Republicans opposing abortion rights and more Democrats supporting them.
Alabama’s abortion ban
Last week, a bill that would ban abortion at any point in pregnancy passed the Alabama House of Representatives. The bill would not punish patients who get abortions but could send doctors who perform the procedure to prison for up to 99 years.
The bill got national attention last week when state Rep. John Rogers, a Democrat, made inflammatory comments denouncing it. “Some kids are unwanted, so you kill them now or kill them later,” he said. In a follow-up interview, the legislator implied that backers of the abortion bill were being hypocritical in wanting to punish abortion providers when other actions of the Alabama state government, like hospital closures, were leading to the deaths of residents.
This week, the bill went to the Alabama state Senate, where debate ensued over whether it should include an exception for rape and incest (the House version did not include one). When Republicans attempted to remove such an exception without a full roll call vote on the issue, shouting broke out on the Senate floor.
TAKE A LOOK: Lawmakers were discussing this bill that would have banned nearly all abortions. The Senate removed an amendment that added exceptions in cases of rape and incest. Right after a quick voice vote to strip the amendment chaos broke out. pic.twitter.com/rygpucN0s2
— Alabama Politics (@AlabamaPolitics) May 9, 2019
“There was no motion from the other side,” state Sen. Bobby Singleton shouted, objecting to the lack of a roll call vote.
“I know you all are for this bill and I know this bill is going to pass,” Sen. Vivian Davis Figures added, according to AL.com. “You’re going to get your way. But at least treat us fairly and do it the right way.”
After the disagreement, the Alabama Senate decided to delay a vote on the bill until next week.
If it passes and is signed by the Alabama governor, it would be the most restrictive of the anti-abortion laws passed this year, according to the New York Times.
Like the “heartbeat” bills in other states, the Alabama bill is in violation of Roe v. Wade. But more than a dozen cases that could pose a challenge to the landmark abortion decision are one step away from the Supreme Court, and the number could grow at any time. And as Forsythe pointed out, advocates on both sides of the issue are trying to pass legislation in preparation for a post-Roe reality.
“Both red and blue states expect the Supreme Court to overturn Roe,” he said.
Efforts to restrict abortion rights — and to shore up abortion rights in blue states in anticipation of a loss of federal protections — are likely to continue until either the makeup of the court changes or the Court revisits Roe.
The latter might not be coming soon. “The Court has indicated that they’re going to go slow on the abortion issue,” Forsythe said, citing a decision late last year not to take up two cases involving Planned Parenthood funding. The decision didn’t directly involve abortion rights, but some observers took it as a sign that the Court was unwilling to litigate abortion so soon after the battle to confirm Kavanaugh.
But with new legislation on the issue coming at a rapid clip, abortion is capturing the public conversation in a way it hasn’t in years, which could lead to more attention on each state initiative. The Georgia ban, in particular, may have been a turning point, Ford said.
“Georgia has sort of ignited the public conversation, so now people are paying more attention to things like Alabama at the national level,” she said.
While a total ban like Alabama’s would have gotten attention in any climate, other abortion restrictions might once have flown under the national radar. But now, when state lawmakers take action on abortion rights, Americans around the country are watching.
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