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Roe v. Everyone: States take on abortion
Nearly six months after an election that underscored the political divide over abortion, North Dakota’s governor enacted a law that bans abortions in most cases once a fetal heartbeat can be detected, or as early as six weeks. It is the most restrictive abortion law in the United States.
The North Dakota law has plenty of company. In 2011 and 2012, U.S. states passed more than 130 restrictions on abortion, according to abortion rights group the Guttmacher Institute. Among those provisions are fetal heartbeat laws like North Dakota’s, as well as “fetal pain” laws, which make abortion illegal after 20 weeks based on controversial research that suggests a fetus can experience pain at that time. Ten states have passed such laws in recent years. (Roe v. Wade allowed the right to abortion services until a medically accepted point of viability, to be determined by the doctor, and generally considered 22-24 weeks.)
Politicians in these states argue that their measures are intended to protect women’s health, make abortion procedures more safe and curtail abortions provided for spurious reasons like the fetus’ gender or race. Many also argue, as North Dakota Governor Jack Dalrymple did this week, that state legislatures have a “legislative right to find out if these laws can stand.”
Below are seven states that have added provisions, restrictions or caveats on how and when women can get abortions. This is by no means a comprehensive list, and many of these bills are being replicated in states not listed below. Most of these provisions are mired in appeals.
In February, the Alabama House of Representatives passed The Women’s Health and Safety Act, which says that an Alabama-licensed physician must be present at every abortion, and that those doctors have admitting privileges at local hospitals. Supporters of the Alabama bill, which needs Senate approval and Governor Robert Bentley’s signature, say it ensures women’s safety. Representative Mary Sue McClurkin, a Republican who sponsored the legislation, said the Act “protects the right of a woman having an abortion to have it in a safe and healthy environment.” But critics argue that hospitals often refuse admitting privileges to abortion doctors solely because they perform abortions, and a proposed amendment that would have prohibited such denials was voted down. One of 10 states with fetal pain laws, Alabama also bans abortions after 20 weeks—with exceptions for the health of the mother—and requires an ultrasound and counseling before an abortion procedure.
In 2011, Governor Jan Brewer signed into law a bill that made Arizona the first U.S. state to outlaw abortions performed on the basis of the race or gender of the fetus. Backers of the measure said the bill would eliminate sex- and race-related discrimination, while critics denounced it for forcing women to publicly state their reason for terminating a pregnancy. In April 2012, Arizona passed the Women’s Health and Safety Act, which prohibits abortions once 20 weeks have passed since a woman’s last menstrual period, or about 18 weeks after fertilization (and with exceptions in cases where the life of the mother is at risk). The Center for Reproductive Rights and the ACLU sued to stop that law, but a judge upheld it. An appeal by the CRR is slated for resolution this year. Arizona also requires pre-abortion ultrasounds and counseling; both must occur at least 24 hours in advance of the procedure. In May of last year, the state also banned abortion providers like Planned Parenthood from receiving state funds.
The Human Heartbeat Protection Act, which would ban nearly all abortions after 12 weeks, was approved this month by Arkansas’ Republican-controlled House and Senate, which collectively overruled a veto from Democratic Governor Mike Beebe. Slated to go into effect this summer, the law would ban most abortions once a fetal heartbeat can be detected by a standard ultrasound, with exceptions for rape, incest, the life of the mother and major fetal conditions. The Heartbeat Protection Act comes on the heels of an Arkansas law that took effect in February, which bans most abortions after 20 weeks. Beebe, whose veto was overridden on the 20-week ban as well, called the latest measure “blatantly unconstitutional,” and the ACLU of Arkansas and the Center for Reproductive Rights say they will challenge the law in federal court. Should Arkansas lose that challenge, it will have to pay all legal fees in the case. Rep. Anne Clemmer told CNN that “protecting unborn children is … an important way to spend state resources.”
Earlier this month, Idaho became the first state to have its fetal pain law—banning abortions after 20 weeks—struck down by the federal courts. U.S. District Judge B. Lynn Winmill ruled in favor of Jennie Linn McCormack, an Idaho resident who sued over the law after she was charged with a felony for obtaining an illegal abortion. Winmill also ruled against a handful of other Idaho abortion provisions. One would have required first-trimester abortions be performed by a physician in a staffed office or clinic (limiting drug-induced abortions). Another would have required that second-trimester abortions be performed in a hospital, and a third would have criminalized the woman (as opposed to the doctor) in certain cases for undergoing the procedure. Revised bills aimed at bringing Idaho’s abortion laws in line with Winmill’s decision have stalled in the state Senate.
Kansas’ anti-abortion bill is back in the state legislature after failing to pass last session. Now revived and approved by the House, the bill is expected to pass in the Senate, and Governor Sam Brownback is expected to sign it. The bill would eliminate abortions as a tax-deductible health care expense, require doctors to provide women with information about abortion risks, and implement a “personhood” clause that defines life as beginning at fertilization. “While that won’t save any babies today or tomorrow or the day after this bill is hopefully signed, what it will do, I hope, is help set the context on more substantive restrictions in the future,” Kansas House Judiciary Committee Chairman Lance Kinzer said during debate on the bill. It does not include exceptions for victims of rape or incest, and also prohibits anyone who works for an abortion provider from also working in a school. It also comes on top of Kansas’ 2011-enacted fetal pain law, which bans abortions after 21 weeks.
Governor Jack Dalrymple earlier this week signed into law a bill banning abortion once a fetal heartbeat can be detected using “standard medical practice.” (The law doesn’t elaborate there, but fetal heartbeats are detectable at about six weeks using a transvaginal ultrasound, or 10-12 weeks with a standard abdominal ultrasound.) North Dakota’s bill provides exceptions for the health of the mother, but none for rape, and doctors performing an abortion after a heartbeat is detected could face a felony charge punishable by up to five years in prison and a $5,000 fine. The Center for Reproductive Rights said it plans to file a legal challenge to the law before it takes effect on Aug. 1. Also this week, Dalrymple signed a bill that bans abortions based solely on genetic abnormalities—making North Dakota the first state to enact such a law—and another that requires abortion doctors to obtain admitting privileges from local hospitals. The House also passed a “personhood” bill that would amend the state’s constitution to give legal rights and protections to human embryos. That measure, whose scope some doctors say could extend to in-vitro fertilization and stem-cell research, will likely go to North Dakota voters in 2014.
During a press conference last year, Governor Rick Perry said his goal “is to make abortion, at any stage, a thing of the past.” To date, the state has aimed for that goal by enacting measures to inform potential abortion recipients of the risks. Texas requires women seeking abortions to have a sonogram at least 24 hours before the procedure, and the doctor performing the sonogram must display the image of the fetus, make the heartbeat audible, and verbally describe the sonogram result. Perry—whose exclusion of Planned Parenthood from the state’s women’s health program was approved by a judge last year—has also voiced support for banning all abortions after 20 weeks. Most recently, Texas’ Senate Bill 537 would regulate abortion clinics as if they were ambulatory care centers. Such laws—dubbed TRAP, for Targeted Regulation of Abortion Providers—mandate building specifications like hallway width and pipelines for general anesthesia. Also on the horizon in Texas: measures that would require abortion providers to collect more information on patients, and provisions that would restrict medical abortions.