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2021 Has Been a Record Year for Abortion Restrictions and Bans

Assuming the Supreme Court casts a hostile eye toward Roe v. Wade, abortion rights would disappear overnight in half the states.

Asa Hutchinson knew the bill was unconstitutional when he signed it. Arkansas legislators passed a near-total ban on abortions in the state, allowing exceptions only when the life of the mother is in danger. Gov. Hutchinson said he would have preferred exceptions for rape and incest, but he believed it provided a good avenue for challenging the Supreme Court case that upholds abortion rights.

“I signed it because it is a direct challenge to Roe v. Wade,” Hutchinson said. “That was the direct intent of it.”

More than a dozen states considered bans on abortion this year, with total bans or bans after six or 20 weeks following gestation passing in Idaho, Montana, Oklahoma and Texas. All told, states have enacted more than 80 restrictions on abortion this year, the most in any year since Roe v. Wade was decided back in 1973.

Restrictions on abortion have been a legislative staple since Republicans took over a majority of legislatures and governorships in 2011. In some states, new restrictions are adopted annually. But there’s an added ambition to the nature of the legislation, following Donald Trump’s three Supreme Court picks. Legislators believe what’s now a solidly anti-abortion Supreme Court will be inclined either to overturn Roe or seriously undermine it. “Everything is pointing toward abortion rights being in serious jeopardy,” says Elizabeth Nash, senior manager for state issues at the Guttmacher Institute, which supports abortion rights.

Last month, the court said it would hear a challenge to Mississippi’s ban on abortions after 15 weeks. If it upholds that ban, it would mean the end of Roe’s protection for previability abortions.

Half the states already have “trigger bans” or other laws in place that would abolish abortions as soon as the court allows it, according to NARAL Pro-Choice America. There has been some movement in blue states to protect abortion rights, but fewer states are controlled by Democrats than Republicans.

“There is no way to uphold the core principle of Roe v. Wade and let that (Mississippi) law stand,” says Kristin Ford of NARAL. “Why would they have taken that case if they didn’t intend to change course?”

Challenging Roe, Fast or Slow

Prior to Roe, legal abortions were available in 17 states. The court found there is a right to abortion, based on the 14th Amendment’s due process clause and the constitutional right to privacy.

Roe has been a motivating force among social conservatives ever since.

“When the Supreme Court has made really controversial decisions, or decisions seen as controversial at the time, over the decades the country accommodates itself to the new reality,” says Gary Bauer, president of American Values, a conservative advocacy group. “That has not happened with abortion.”

Nearly 50 years after the Roe decision, anti-abortion sentiment remains passionate. According to Gallup polling, a slightly larger percentage of Americans consider themselves “pro-choice” than “pro-life,” but only about a third believe that abortion should be legal under any circumstances. Far more people support abortion with restrictions, however, than outright bans.

For years, not only was the country split, but so was the anti-abortion movement. Many abortion opponents argued that the better tack was to limit access through restrictions, such as waiting periods or requiring physicians to have admitting privileges at nearby hospitals. The Supreme Court, after all, decided 40 years ago that restrictions on abortion were permissible, so long as they did not place an “undue burden” on women seeking the procedure.

“There’s been a disagreement over strategy,” Bauer says. “One of the things people have argued is, you don’t want the court to continue to uphold Roe, because every time they uphold Roe, you’ve strengthened the precedent.”

But now abortion opponents believe there’s a good chance that Roe is vulnerable. Bauer says he hopes that the court will overturn Roe and find that unborn children are persons for the purposes of constitutional protection. The court may still not want to take that step, instead finding that Roe was wrongly decided and leaving it to the states to decide whether abortions should be legal.

“If that happens, it would be a gigantic step forward in restoring the sanctity of life in this country,” Bauer says.

Banning at the State Level

Red states are seeking to ensure that abortion bans can stand, assuming that the federal precedent is eventually overturned or undermined. In 2019, the Kansas Supreme Court found that abortion is a “fundamental right” under the state constitution. In January, the Legislature put a constitutional ban on abortion, which would overturn the court’s decision, before voters on the August 2022 ballot.

Kentucky voters will also weigh in on a state constitutional ban next year, likely followed by Iowa. State constitutional bans have already been approved by voters in several other states, most recently Louisiana and West Virginia.

“They’re clearing the way for states to enact and enforce abortion bans,” says Nash, of the Guttmacher Institute. “If federal rights are weakened or overturned, that avenue is closed. If state constitutions don’t offer protection, then it will be very difficult, if not impossible, to bring challenges to bans.”

Even as they’re aiming to ban abortions, red states continue to impose new restrictions. Arkansas and Kentucky, for example, have made it easier this year for agencies to shut down clinics.

Last month, Texas Gov. Greg Abbott signed a bill to ban abortions at six weeks following gestation. The new law also grants legal standing to abortion opponents to sue providers or anyone who helps an individual obtain an abortion by offering financial help or transportation.

States are also adopting restrictions on medication abortions. Already, more pregnancies are ended medically than through surgery or suction. In April, the federal Food and Drug Administration ruled that, during the pandemic, women can receive pills by mail, suspending the requirement that they have an in-person visit.

Arizona, Indiana and Montana have all passed restrictions on medication abortions this year, part of a trend toward making it more difficult to receive reproductive services through telehealth. “We’re looking at limitations on medication abortion at 10 weeks,” Nash says. “Or we’re seeing restrictions around providers, that they have to have a contract with another provider to handle emergencies.”

Fewer Blue States

Sensing the potential direction at the Supreme Court, blue states have acted to shore up rights within their borders. In February, New Mexico removed its 1969 ban on most abortions, which had been dormant since Roe. Last year, Massachusetts codified and expanded the right to abortion, erasing a pre-Roe law, following similar action in Nevada in 2019.

Other states are seeking to make it easier for residents to obtain abortions. Colorado removed some restrictions on Medicaid financing of abortion that had limited women to services available only in Denver. A new law in Hawaii allows advanced practice registered nurses to prescribe pregnancy-ending medication or perform minor surgery, which lawmakers felt was necessary because most physicians who provide abortions are located in Oahu.

But there are fewer states controlled by supporters of reproductive rights than those controlled by abortion opponents. Women who live in, say, Alabama will have long distances to travel if the Supreme Court allows abortion bans to stand. Those who do have the means to get on a plane will increase demand in states such as New York and California, without any promise that there will be any increase in the numbers of providers or clinics.

In the meantime, legislators in red states are engaged almost in a competition to see who can impose the most solid ban on abortion, either by surviving court challenges or making procedures nearly impossible to obtain under current law. The ban that Gov. Hutchinson signed was one of 20 anti-abortion laws enacted in Arkansas this year, a record number for any state.

“I will continue to keep my promise and sign every piece of pro-life legislation that hits my desk,” Oklahoma Gov. Kevin Stitt wrote on Facebook in April. “I am proud to be called the most pro-life governor!”

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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