An analysis of the types of legislation opponents are deploying across the country.
You’ve seen Texas legislator Wendy Davis in her pink sneakers and shuddered over the murder trial of baby killer Kermit Gosnell. Meanwhile, various states are passing increasingly extreme abortion restrictions. But with bill after bill, it’s hard to keep track and easy to get swept up in the outrage. What’s the bigger picture here? Which of these laws have a real shot at being upheld in court? After all, while the wave of legislation comes out of a deep and abiding rift, a lot of it is also political theater — of use to both sides. Let’s go from least to most plausible — from the laws that are largely symbolic to the ones that keep pro-choice lawyers up at night.
The laws that make a statement, but won’t go into effect without an outright reversal of Roe vs. Wade, are the ones that attempt to outlaw abortion early in pregnancy. North Dakota has a new one timed to detection of the fetal heartbeat, which is usually around six weeks. In March, Arkansas banned abortion 12 weeks after a woman’s last menstrual period. These laws will all be struck down in court.
18- and 20-week bans
Eleven states now ban abortion at some point during the second trimester, before a fetus is viable. That number may soon be 12, if the Texas bill that Davis succeeded in temporarily stopping with her crowd-supported filibuster winds up passing.
In several of these states, doctors probably don’t do abortions after 18 or 20 weeks anyway. But that’s not the case in Arizona, where in 2011, 376 abortions took place in or after the 18th week. (That is only 2.76 percent of the total number of abortions in the state — the vast majority of abortions nationwide take place in the first trimester.) A federal court of appeals struck down Arizona’s 18-week ban this spring, and the Georgia courts (where doctors also perform late second-trimester abortions) have also blocked that state’s 20-week ban.
Abortion opponents give two justifications for these bans: preventing fetal pain (though there’s scant evidence that fetuses can feel pain at this point) and protecting women’s health. The idea there is that since the rate of complications for abortion rises in the second trimester, banning the procedure at this point keeps women safe. But giving birth is still riskier than having an abortion at 18 or 20 weeks. Never mind: The 18- and 20-week bans appeal to their supporters because they keep the focus on abortions at a later stage of fetal development, for which there’s far less public support. And they could get sympathy from Justice Anthony Kennedy, who joined the Supreme Court’s conservative wing in 2007 to uphold a law banning a particular form of very late-term abortion (so-called “partial birth abortion”).
Upholding a law like Arizona’s, which makes an exception for protecting the life of the mother, but not for protecting her health, or for a serious birth defect, would be a far more drastic step for Kennedy to take.
Twelve states now have laws that go after abortions delivered by pills in the first trimester. Medication abortions are becoming increasingly popular. But if you oppose abortion from conception, they are a threat. Abortion opponents are trying to make them more expensive and less available — once more, in the name of protecting women’s health — by barring abortion providers from prescribing the medication via teleconference. Clinics use teleconferencing to expand services in rural areas. States with telemedicine bans require the doctors to be in the same room when the pill is swallowed, even if a trained nurse or physician’s assistant is there. (This is also a fight over credentialing.) So far, Wisconsin’s law has been blocked in court; challenges are pending in other states. This is a legal fight that’s just beginning.
“TRAP” stands for targeted regulations of abortion providers. These laws differ in the fine print, but the common goal is to make it prohibitively expensive, or simply impossible, for providers to operate. Often the first step is to require an abortion clinic to meet the same regulatory standards as an ambulatory surgical clinic (a facility that’s not a hospital but does outpatient surgery), which often costs too much money for a clinic to do. Twenty-six states now have these laws.
The latest breed of TRAP law requires abortion providers to have admitting privileges at a local hospital. Sounds reasonable, right? The state is just making sure that a patient with complications can get the care she needs. Except that any patient who shows up at an emergency room gets care. Her doctor doesn’t need to be affiliated with the hospital. The underlying goal is to use the hospitals’ denial of admitting privileges to shut down the clinics.
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