States Criminalize Abortion with Roe in Reach

In front of SCOTUS during March for Life Rally. January 22, 2016. Photo courtesy of Robin Marty.

Alabama Gov. Kay Ivey on Wednesday evening signed a bill into law intended to ban nearly all abortions and criminalize physicians who provide abortion care, and hours later the Missouri state senate approved legislation that ban abortions after eight weeks of pregnancy.

The Alabama Human Life Protection Act, slated to take effect in six months, prohibits abortion at any point in pregnancy, and makes performing an abortion or attempting to perform an abortion a felony. The law provides an exception if a physician determines a pregnancy must be terminated to prevent a pregnant person’s “death or to avert serious risk of substantial physical impairment of a major bodily function,” and there is also an exception for ectopic pregnancy or lethal anomaly.

Rep. Terri Collins (R-AL) said the law was explicitly intended to provoke litigation that would possibly result in a direct legal challenge to Roe: “My goal with this bill is not to hurt them in any way. My goal with this bill, and I think all of our goal, is to have Roe v. Wade turned over, and that decision be sent back to the states so that we can come up with our laws that address and include amendments and things that address those issues.”

President Donald Trump’s successful appointment of Brett Kavanaugh to replace former Associate Justice Anthony Kennedy on the U.S. Supreme Court shifted the ideological balance of the Court. The anti-abortion movement has exploited the Court’s new conservative majority, and state lawmakers have approved laws guaranteed to provoke litigation that would directly challenge the constitutional right to an abortion affirmed in the 1973 landmark decision of Roe v. Wade.

The anti-abortion movement has downplayed the importance of the overturning of Roe as a strategic goal, and some have even claimed that reproductive rights advocates’ warnings that the Court could overturn Roe were engaging in “scaremongering.” Despite the anti-abortion movements’ rhetoric, it is apparent that the movement has pivoted during the last two years, and has launched a direct legislative assault in the states aimed at Roe.

Trump’s judicial appointments fulfill a campaign pledge to the Christian Right, as conservative evangelicals were instrumental to his election. During the 2016 presidential campaign, prominent voices within the Christian Right urged social conservatives to support Trump as a means to an end of achieving a conservative majority on the U.S. Supreme Court.

During the 1990s, the anti-abortion movement embraced an incremental strategy and advocated for policies that created barriers to access abortion, and instead of banning abortion would increasingly make abortion difficult to access. After the midterm elections of 2010, this strategy was aggressively pursued by state lawmakers. During the following eight years, state legislatures approved 424 laws that restrict reproductive rights.

The Family Research Council, among the most influential organizations of the Christian Right, characterized the law as “about ending abortion, period,” and Susan B. Anthony List, a political action committee that supports anti-abortion candidates, released a statement that it is “clearer than ever that Roe is far from being settled law.”

However, there are elements of the anti-abortion movement who remain unsatisfied.

Rusty Thomas, the leader of Operation Save America, wrote that while the law goes “furthest towards the truth than any other law before it,” he opposed the limited exceptions included in the law as well as the lack of criminal penalties for pregnant people seeking abortion.

“We cannot make truth claims like abortion is murder and then in the legal realm not hold all people involved in the murder accountable in a court of law. This must of necessity include the mother. If she pays somebody to murder her child, she is not a victim, but a criminal.”

The Alabama law is among the egregious legislative assaults on reproductive rights, and this year state lawmakers have considered various types of proposals which would seek to ban abortion and criminalize abortion providers. Among the most prevalent of these types of draconian proposals are so-called heartbeat bills, which would prohibit a physician from performing an abortion if a fetal heartbeat is detected and would effectively ban abortion as early as six-weeks into pregnancy.

There has been an unprecedented surge in fetal heartbeat bills. During the first five months of 2019, there have been 36 bills introduced in fifteen states. During 2018, there were just 15 heartbeat bills introduced in seven states. Unlike many other types of abortion restrictions, heartbeat bills are not based on specific model legislation drafted and promoted by anti-abortion organizations.

This year fetal heartbeat bills have been introduced by lawmakers in Florida, Illinois, Maryland, Minnesota, New York, Rhode Island, Texas, and West Virginia; passed by at least one legislative chamber in Louisiana, Missouri, South Carolina, and Tennessee; and signed into law by the governors of Georgia, Kentucky, Mississippi, and Ohio.

While there has been much criticism of the 25 white male Republican state lawmakers who voted for final passage of the Alabama law, Collins is one of a number of white Republican women who are the primary sponsors of anti-abortion laws. Sen. Angela Burks Hill (R-MS) was the sponsor of the heartbeat ban signed into law by Mississippi Governor Phil Bryant, and Sen. Kristina Roegner (R-OH) was the sponsor of the heartbeat ban signed into law by Ohio Governor Mike DeWine.

These laws have consistently been found to be unconstitutional by state and federal courts.

An Iowa state county district judge in January ruled that the state’s fetal heartbeat law, which would have banned nearly all abortions in the state as of July 2018, violated Iowa’s state constitution. Governor Kim Reynolds opted not to appeal the ruling. Kentucky Governor Matt Bevin in March 2019 signed into law a heartbeat bill, and a federal judge issued a temporary restraining order blocking the state from implementing the law. Similar laws have also been struck down by courts in both Arkansas and North Dakota.

This surge in legislation to either ban abortion early in pregnancy or ban abortion at any point in pregnancy will result in an increased amount of litigation, and the overwhelming amount of anti-abortion cases pending in the courts is also part of the multipronged legal strategy of the anti-abortion movement. Laws that prohibit the most common type of second-trimester abortion care, as well as laws that ban abortion after 15-weeks of pregnancy, are also currently facing legal challenges.

It remains unclear if the Supreme Court will eventually take up challenges to laws similar to the one passed by Alabama, or if the Court will accept subtler restrictions as a vehicle to reconsider Roe. For now, anti-abortion measures at the state level are reaching a rolling boil.