(This story was originally published on SHFWire.)
WASHINGTON – Since the 2010 midterm elections when Republicans regained control of the majority of state legislatures, there has been an increase in legislation dealing with abortion. These new laws set standards for abortion clinics, which critics say will cause the majority of clinics in some states to close. The laws also ban abortions after a certain point in pregnancy – many challenge the Supreme Court’s 1973 landmark abortion ruling.
The legislation has sparked controversy, causing abortion-rights activists to rally, and started a national debate about women’s health and reproductive rights. It is unlikely, however, that trends in the states will have an immediate effect at the federal level. Some state laws have gone unchallenged, while others have been struck down by judges.
The legislation and the debate
States enacted 106 provisions affecting reproductive health and rights in the first six months of 2013, with 43 of those focusing on restricting abortion, according to the Guttmacher Institute, a nonprofit that favors sexual and reproductive health and rights.
A main focus of these restrictions is banning abortion after a certain point in pregnancy – most popularly 20 weeks post-fertilization. Pregnancies usually last about 39 weeks.
However, these provisions conflict with the Roe v. Wade Supreme Court abortion case. The court divided pregnancies into three parts, or trimesters. In the first, states may not regulate abortion. In the second, states may enact laws to promote maternal health. After fetal viability – in the third trimester – states may ban abortion, except when it’s necessary to preserve the mother’s life or health.
The court defined viability as the beginning of the third trimester. The American Congress of Obstetricians and Gynecologists, a national organization representing women’s health experts and advocating for women’s health-care issues, says viability occurs at 25 weeks. Others say it’s earlier.
“Society has had 40 years of being told that there isn’t life there,” North Dakota State Rep. Bette Grande, R-Fargo, said. Grande sponsored the state’s ban on abortion after six weeks of pregnancy. “Technology has caught up to that and is saying otherwise. It’s time that we as a society learn and are shown that that is a beating heart and a decision needs to be made. That’s the question that society hasn’t asked itself in a long time.”
A North Dakota federal judge issued an injunction against the law July 22, saying it is unconstitutional and a direct contradiction to the precedent set by the Supreme Court.
Ten states have enacted laws that ban abortions after 20 weeks. Arizona bans abortion after 18 weeks.
Because these laws don’t match the trimester definitions in Roe v. Wade, it’s possible an appeal could reach the Supreme Court.
“The test that the court now applies to laws that restrict abortion is, ‘Is this an undue burden to a woman’s right on abortion?’ Whether the court would see it as that is almost anybody’s guess at this point,” said Linda Greenhouse, asenior research scholar in law at Yale University who covered the Supreme Court for The New York Times for 40 years.
She said that the Supreme Court’s agreement to review a case about medical abortion – the use of the drug RU-486 – indicates that the court might be interested in taking up an abortion case. But first, the court sent the case back to the Oklahoma Supreme Court for more information.
“The question is where is Anthony Kennedy on this?” Greenhouse said. Kennedy, the Supreme Court justice who wrote the majority opinion that upheld the Partial Birth Abortion Ban Act, supports abortion rights but also supports restrictions. “He’s the one who sort of straddles both sides. … He holds the key right now in the court as it sits presently. The question is which of any of these restrictions will strike him as either an undue burden or not as an undue burden.”
Sponsors of the 20-week bans say they chose that limit because that’s when fetuses are able to feel pain. Whether fetuses can feel pain before viability is not only a point of contention in the debate on state legislation but is also one in the scientific world, where there is evidence supporting both sides of the argument.
Jeanne Monahan, president of March for Life, an anti-abortion organization, said that the bills states are passing are “very much in line with mainstream Americans’ public opinion … that late-term ban is what most Americans want.”
After the House of Representatives passed a bill in June that would create a nationwide restriction on abortion after 20 weeks, United Technologies and the National Journal Congressional Connection Poll conducted a poll asking Americans their views about this type of legislation. The poll of 1,005 of adults nationwide found that 48 percent said they would support it, while 44 percent said they would oppose it. The margin of error is plus or minus 3.6 percentage points.
That bill, however, has no chance of becoming law at the moment because it must be approved by the Senate. Jessica Brady, the Senate Judiciary Committee press secretary, said that “no member has asked for it to be placed on the agenda.”
When the question is whether and when abortion should be legal, Americans are divided.
According to a May Gallup Poll, 26 percent of Americans think abortion should always be legal, while 52 percent think it should be legal in certain circumstances and 20 percent think abortion should always be illegal. The margin of error is plus or minus 3 percentage points.
Monahan said that bills banning abortion are “good for women and certainly good for babies.”
While critics disagree that the bills benefit women, it is indisputable that the abortion policy debate has been growing since 2011 when there was a spike in proposed state legislation. But what changed between 2010 and 2011 to cause this spike, and in turn, light the fuse for a national debate?
The Republican spark
In the 2010 midterm elections, conservative Republicans gained majorities around the country because of a process Thad Hall, director of the graduate department of political science at the University of Utah, calls “getting primaried.” It means that a Republican may be challenged from the right, or a Democrat challenged from the left in an election.
“You get primaried because people on the right say, ‘You’re not nearly conservative enough,’” Hall said. This happened a lot in 2010 “because that’s when all the Tea Party people were saying ‘We’re sick of these squishes being in the Republican Party.’”
Republicans gained not only a 49-seat majority in the U.S. House of Representatives – winning 64 seats to bring their total to 242 – but also a majority of state legislatures.
Republicans gained control of 12 state legislatures, bringing their total to 26 in 2011 from 14 in 2010 before the midterm elections.
This switch in party control causes what political experts define as the middle of the political spectrum to move.
“What used to happen is you’d move from the left to the right and see little movements from the status quo,” Hall said about switches in party control. “Now what you’re seeing happen is when you see a movement, it’s jumping so far to the right.”
It’s a confirmation of Newton’s Third Law: For every action, there is an equal and opposite reaction.
A push in the opposite direction
As states like Texas and North Dakota continue to propose legislation that limits access to abortion, organizations including Planned Parenthood are unifying against those laws and bills.
In mid-July, hundreds of Planned Parenthood staff members from around the country gathered on Capitol Hill to rally against the legislation being passed in the states. They wore pink T-shirts and held pink signs with white words saying “Stand with Women” and “Protect Women’s Health.” They chanted in support of women’s health rights and listened to remarks from Cecile Richards,president of Planned Parenthood Federation of America, Sen. Al Franken, D-Minn., and Rep. Rosa DeLauro, D-Conn. They spent the day meeting with their senators and representatives to talk about abortion policy.
“There are so many decisions that this Congress is making and that the White House is making about health-care coverage,” Richards said at the rally. “We’re very excited with the Affordable Care Act and the opportunity now for millions of women and uninsured people to actually get health care that they’ve never been able to have before. So we want to carry that message to Congress and make sure there’s no backtracking on women’s health.”
Planned Parenthood’s “Stand with Women” rallies have been taking place across the country. In Texas, opponents organized a bus tour to demonstrate against the legislation. In Raleigh, N.C. – where Republican Gov. Pat McCrory signed a bill on Monday that critics say will cause abortion clinics to close because of strict new rules – groups with pink shirts and signs rallied to deliver their message.
“All over the country right now, what are the Americans looking for from the Congress? They want us to look at the issues that are going on in their lives,” DeLauro said at the Capitol Hill rally. “That’s not what’s happening right here. What we’re doing in Washington, in states all over the country, is launching an assault on women’s health and their basic rights. In Congress, in state legislatures, they are trying to codify their extreme, their divisive ideological preferences into law and to impose a misguided view of a woman’s role on everyone else. We say no, it isn’t going to happen.”
In early June, ACOG released a statement opposing abortion-restricting legislation.
“We are speaking out not just on behalf of ob-gyns, but for all physicians and patients,” Dr. Jeanne A. Conry, ACOG president, said in the statement. “Many of these laws are dangerous to patients’ health and safety. As physicians, we are obligated to offer the best evidence-based care to our patients. Government should stay out of imposing its political agenda on medical practice.”
Planned Parenthood and ACOG hope they can create a successful counter effort in enough states to reduce legislative efforts that would further regulate or ban abortion.
“If there are successful counter-mobilization efforts, it’s going to be interesting to see how that works,” Hall said. “You see Texas being really mobilized on the left because of this abortion stuff. In the long run, it can be very harmful to the overall conservative agenda. So the question is whether people counter-mobilize and if they can do it successfully.”
And if people can counter mobilize successfully, Hall said, there is a chance that the status-quo can be moved back toward the left.
“Moving the status quo is always difficult, but I do think that there can be change that occurs,” Hall said. “It’ll be slight, but yeah it can happen.”
The federal response
The 10 states that enacted 20-week abortion bans represent approximately 19 percent of the U.S. population. Texas, the second most populous state, has 26.1 million residents, according to the U.S. Census Bureau. The nine other states have populations ranging from 600,000 to 10 million.
If states continue to pass abortion-restriction legislation, which the evidence suggests will happen, it will most likely have no effect at the federal level, Scott H. Ainsworth, professor of political science at University of Georgia, said. Ainsworth and Hall co-wrote a book in 2011, “Abortion Politics in Congress: Strategic Incrementalism and Policy Change.”
“The trend at the federal level is going to be affected by national level policy,” Ainsworth said. “What happens in Texas, as an example, from abortion policy to immigration policy, is not going to have a ripple effect in Washington.”
Ainsworth said that federal legislators might propose more restrictions, “but in terms of getting things passed, it won’t happen.”