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States Push the Limits of Abortion Rights and Restrictions

While conservative lawmakers push "heartbeat" bills that could challenge Roe v. Wade in court, liberals are pushing legislation that allows late-term abortions during pregnancies with severe health complications.

Late Term Abortion
An anti-abortion demonstrator holds a sign as Virginia Gov. Ralph Northam talks about an abortion bill that died in committee.
(AP/Steve Helber)
Since the U.S. Supreme Court became solidly conservative with the appointment last year of Brett Kavanaugh, states have responded in drastically different ways.

While liberal lawmakers are protecting and expanding abortion rights, conservative legislators have been pushing increasingly restrictive abortion regulations that could wind up challenging Roe v. Wade, the 1973 Supreme Court case that legalized abortion.

Florida, Ohio and Tennessee legislatures are currently weighing “heartbeat” bills that would restrict access to an abortion after a heartbeat is detected -- often before a woman knows she’s pregnant. The Republican governors of both Ohio and Tennessee have voiced support for them.

Similar legislation in other states, however, has not held up in courts.

Meanwhile, blue states are scrapping pre-1973 laws on their books that -- if Roe v. Wade were overturned -- would criminalize abortion in those places. In a more controversial move, a few of those states are also considering legislation that would allow women to get late-term abortions in cases where their health, or their babies' health, is at risk. 

The outdated laws being abolished are currently unenforceable, but abortion rights advocates say they're a necessary precaution in case the Supreme Court reverses or relaxes Roe v. Wade.

Eliminating New York's pre-Roe law that criminalized abortion had long been a goal of Democrats in the state. Their newfound control of the state Senate made that goal a reality. Democratic Gov. Andrew Cuomo signed the bill last month.

Now, there are just two blue states with these outdated, decades-old laws. They criminalize doctors for inducing miscarriages and not notifying husbands beforehand, among other things. In both of those states, New Mexico and Rhode Island, lawmakers introduced bills last month to eliminate them.

In New Mexico, the bill has passed out of committee, and Democratic state Rep. Joanne Ferrary, who co-sponsored it, is optimistic it will pass. In Rhode Island, the bill has more of an uphill climb because it also includes enforceable provisions to legalize late-term abortions under certain conditions.

Rhode Island’s bill drew a contentious crowd at a hearing last week, according to the Providence Journal, and Democratic state Rep. Edith Ajello, who co-sponsored the bill, says she's gotten many phone calls from people concerned about headlines they have seen that say women could abort "until delivery."

"Once I explain that it's just in the instances where it's to save the life of the mother, that it's an extreme situation to save a patient's life and gross oversimplification of what the bill says, people said they understood. Not everyone, but most people did," Ajello says.

Her bill also enshrines the right to an abortion into the state constitution as well as removes a spousal notification law and a ban on "partial birth" abortions, which abortion rights advocates say is necessary to repeal to allow late-term abortions in cases with severe and life-threatening complications.

The governors of both states -- both women and Democrats -- have said they would sign the bills -- into law.

"I believe that no one should get in the middle of a decision between a woman and her doctor and that no woman should have to choose between health care and making ends meet. #RHCA," Rhode Island Gov. Gina Raimondo tweeted in support of Ajello's bill.

But a competing, more modest bill is expected to get more traction in Rhode Island. It simply rolls back the pre-Roe law and enshrines the right to an abortion.

In New York, Democratic Gov. Andrew Cuomo signed a bill last month to remove the state's 24-week limit on abortions. Now, women in the state can get an abortion at any time during pregnancy if there's "absence of fetal viability, or the abortion is necessary to protect the patient's life or health." 

In Virginia, a bill that would allow abortions in the third trimester under similar circumstances has stalled in committee.

The late-term abortion bills are being used by Republicans to galvanize voters for the 2020 election. 

"This is going to lift up the whole pro-life movement like maybe it's never been lifted up before," President Donald Trump said in an interview last week.

Abortions after 20 weeks are rare -- around 1 percent, according to the Centers for Disease Control and Prevention. Doctors say that abortions in the third trimester are likely because something has gone wrong in the pregnancy.

In the backdrop of this legislative action, the Trump administration is expected to announce any day now its final "domestic gag rule," which would restrict health-care providers in the historically bipartisan Title X program from referring or providing abortion services. It would be a win for anti-abortion advocates. 

This appears in the Health newsletter. Subscribe for free.

Mattie covers all things health for Governing.

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