2019 has been a rough year for supporters of reproductive rights. The last few months have brought the passage of some of the most extreme abortion legislation in decades. To be clear, ABORTION IS STILL LEGAL IN THE UNITED STATES. Confusion around the number of bills is understandable, and in the last few weeks in particular, it’s been hard to keep up with all of the antics of the anti-abortion movement.
What’s going on with abortion bans in the states?
Friday, a bill that would ban abortion eight weeks into pregnancy swept through the Missouri House, the legislation’s last stop before reaching Governor Parson, who will likely sign the bill into law. This follows a scurry of anti-abortion activity in other southern states, namely Alabama, which passed a law that would effectively ban nearly all abortions in the state, and Georgia, which passed a law that would ban abortion as early as six weeks. But that’s not all: last month, Indiana, Ohio, Mississippi, and Kentucky also passed abortion bans (all of which have been challenged).
This seems like a lot of anti-abortion legislation in the states!
Yes, nearly 30 abortion laws have passed so far this year. But, you might be shocked to learn that number isn’t that different from recent years (remember, we saw 288 abortion restrictions passed from 2010-2015). What is unique to this place in time are the types of abortion bills that are being introduced and passed. These are extreme, flat-out bans on abortion. They are both unconstitutional and cruel, without exceptions for rape or incest survivors, and severe criminal penalties for providers – the Alabama bill would send doctors to jail for up to 99 years for providing abortion care.
Before this year, the extreme bans that have been flying through state legislatures were typically seen – even by anti-abortion lawmakers – as too radical to pass. With anti-abortion Justice Kavanaugh on the Supreme Court, the nomination and appointment of numerous anti-abortion judges in lower courts, and the inflammatory rhetoric of the Trump administration, the anti-abortion movement has felt more emboldened than ever to pursue unconstitutional abortion bans. They want to find the perfect vehicle that will allow the U.S. Supreme Court to overturn Roe v. Wade.
And they aren’t hiding their goal. Alabama State Representative Terri Collins, who sponsored the most recent Alabama abortion ban, has made this clear, saying “[t]his bill is about challenging Roe v. Wade.” Another supporter of the bill, Alabama State Senator Clyde Chambliss, similarly stated that the bill “is a direct plan to challenge Roe v. Wade in the Supreme Court.”
These extreme abortion bans are not in effect and it’s very unlikely that they will go into effect. These are blatantly unconstitutional and given that courts are supposed to respect precedent created by earlier court decisions, hearing a challenge that could result in the complete overturning of Roe – which would have to be the outcome if the Supreme Court upheld an extreme ban – is not likely. Even Chief Justice Roberts – no friend to Roe – cares about the rule of law and the legitimacy of the Court. He – and others on the Court – might also care about the public uprising that would surely follow were the Court to overturn Roe, especially if it’s close in time to the presidential elections. That’s part of the reason Republican leaders, including President Trump, are distancing themselves from these extreme bans.
But that doesn’t mean we are safe. As a result of years of pushing anti-abortion legislation, the Supreme Court could have the opportunity to rule on abortion again as early as next term. At the front of the line in challenges to abortion restrictions are three petitions for certiorari awaiting conference with the Supreme Court, including a challenge to an Indiana law that has been distributed for conference fifteen times. The Alabama and Indiana restrictions at issue mirror many of the abortion restrictions that we’ve seen in state legislators over the last few years, banning a safe method of abortion, and banning abortion for particular reasons, including on the basis of the sex, race, or disability diagnosis of the pregnancy. It’s more likely that the Supreme Court will take up one of these cases first before they’d hear a challenge to one of the extreme bans on abortion. Those cases could give the Court a chance to completely gut Roe, even if it doesn’t overrule it outright.
What can you do?
Abortion providers and those trying to access abortion need your support now more than ever. Thank your local abortion provider for their work.
Abortion access already suffers under restrictive policies – and this current environment only serves to worsen the impact. People of color, those living in rural areas, young people, and individuals in the LGBTQ community face a host of barriers to getting health care, including access to abortion. As we know from the pre-Roe era, further gutting the legal standard under Roe would diminish that access even more.
So help those that are already struggling to access abortion care by donating to your local abortion fund.
Together we say: Stop the bans.