2013 has been a busy year for abortion-related legislation and regulations at the state level in the United States, and abortion advocates are irate. According to the Guttmacher Institute, a pro-abortion research outfit, in the first six months of the year, states enacted 106 provisions affecting abortion, family planning, and sex education policies, although that number includes both pro-life and anti-life initiatives.
According to abortion advocates, the number of abortion-restrictive measures introduced and passed at the state level has been increasing. According to NARAL Pro-Choice America, 42 limits on abortion were enacted in 25 states in 2012. Since 1995, a total of 755 “anti-choice” measures have been enacted, or about 58 a year, indicating that the number is not unusually high. The Planned Parenthood Action Fund, the political arm of Planned Parenthood, complains that in 2011 and 2012, “more than 1000 provisions related to women’s health were introduced,” most of it “bad legislation” introduced to “restrict women’s health.” It says of 257 abortion-related measures passed in the previous two years, the majority “interfere with women’s health.”
It is not easy separating the abortion and non-abortion items from these organizations’ lists, as they include establishing certificates for stillborn births and reforming child abandonment laws as so-called “anti-choice” measures. Focusing on clear restrictions on abortion, such as banning taxpayer funding for abortion, restricting abortion coverage in health insurance coverage, providing informed consent including seeing an ultrasound, requiring abortionists to have admitting privileges to local hospitals and limiting abortion after a specific point of the pregnancy, about a dozen states passed substantial limitations on abortion in 2013.
However, many are not being enacted. According to a Bloomberg News report, “state legislatures trying to curtail abortions have suffered a 0-for-8 losing streak after court challenges to their new laws this year.”
Groups such Americans United for Life and the Thomas More Society are pushing state-level curbs on abortion consistent with Roe v. Wade, which allows late-term abortion restrictions and the right of states to regulate medical care and coverage. Democrats have countered that these restrictions are part of the Republican “war on women,” a theme of the 2012 presidential election.
The most famous of the state-level battles this year occurred in Texas. In June, the Texas legislature debated several measures designed to curtail abortion, including a ban on abortion 20 weeks into a pregnancy (or 22 weeks after the woman’s last period).
The bill, introduced by State Representative Jodie Laubenberg, would not only lower the current Texas limit on abortion from 26 weeks, but also require all abortion facilities to have the same standards as all other outpatient surgery centers, require abortionists to have admitting privileges to a hospital within 30 miles of the abortion mill and ban anyone other than a doctor to dispense the RU-486 abortion pill, and that both doses of the pill be administered under the abortionists’ supervision rather than permit women from taking the second stage at home. Laubenberg and Texas Governor Rick Perry, both Republicans, cited protecting the health of women as reasons for most of the new measures and the fact that research indicates preborn children can feel pain at 20 weeks for the lowered time limit for surgical abortions.
Abortion advocates and their allies in the Democratic Party have lambasted the limits, suggesting that abortion facilities will close rather than abide the new regulations and that American women will head to Mexico to obtain the dangerous abortion pill “misoprostal,” which is actually the second stage pill of the RU-486 abortion drug. Yet at the same time, the Guttmacher Institute’s own research indicates that the 20-week limit on abortion affects only about three per cent of women obtaining abortions.
The Texas abortion debate gained national attention when a Democratic legislator, Wendy Davis, filibustered the bill in the state Senate. To prevent a vote on SB 5, she stood in the chamber and talked. But despite copious media coverage, there is no mention of her talking about abortion or why it should be allowed after 20 weeks. She did talk about women’s health and the Republican “war on women.” There was plenty of media coverage of what she wore. Fashion magazine Vogue described her filibuster: “Wearing pink Mizuno running shoes and a sky-blue Escada day coat … held the floor for a twelve-hour filibuster that packed the rotunda with pro-choice defenders and had the nation biting its collective nails as coverage streamed online and the clock ticked down to midnight.” She became an instant media star and hero to the pro-abortion crowd. On Twitter, her fans showed support by using the hashtag #StandWithWendy. Among the roughly 400,000 users showing their support was President Barack Obama and actress Lena Dunham of the show Girls. (Erick Erickson of RedState.com responded by labeling her #AbortionBarbie, noting that the media gave more attention to the politician’s clothes than her views.)
After serving for 13 years as a state legislator in relative obscurity, she rose to national prominence, garnering an invite to be interviewed on “Meet the Press” and getting attention from Comedy Centrals’ pseudo-news “The Daily Show;” on the former she was not pressed on why she supported abortion after 20 weeks and the latter focused on her running shoes.
Despite Davis’ efforts, the bill was eventually voted upon but was not signed into law in time to be enacted due to a technicality. Governor Perry recalled the legislature, which has recessed for the year, for a special session to take up the abortion law again. Davis could not filibuster this time, but now abortion advocates descended on Austin, the Texas capital, to protest against the abortion limits. Police confiscated containers of feces, urine, and blood that they say pro-abortion supporters were going to throw at pro-life supporters and politicians.
Texas was not the only state to pass abortion restrictions, just the largest. Four others states have passed laws barring abortions after six (North Dakota), 12 (Arkansas), and 20 weeks (Idaho and Arizona). In July, the North Dakota law, which bans abortions at six weeks because fetal heartbeats can be detected at that time, was temporarily struck down by U.S. District Court Judge Daniel Hovland, who claimed it was a “blatant violation of the constitutional guarantees afforded all women.” In Arkansas, there was enough support in the legislature for a limit on abortions after 12 weeks gestation that it overturned the Democratic Governor Mike Beebe’s veto; the state Senate voted 20-14 and the state House of Representatives voted 56-33. Yet, U.S. District Court Judge Susan Webber Wright blocked its implementation. Arizona’s ban on late-term abortions was struck down on May 21 by the 9th Circuit Court of Appeals. It is expected the state will petition the Supreme Court of the United States to review that decision.
Over the Summer, Wisconsin passed a law requiring abortionists have local hospital admitting privileges and making ultrasounds mandatory before women have abortions. The law was signed into law on July 5 by Republican Governor Scott Walker, and was immediately blocked from being implemented when the national and state chapters of both American Civil Liberties Union and Planned Parenthood sought an injunction. The U.S. District Court will hear the case in November.
Pro-abortion groups label the hospital admittance regulations “targeted regulation of abortion providers” or TRAP laws. This year, federal district courts blocked similar laws in Alabama and Mississippi earlier this year, and a North Dakota trial court blocked a law requiring hospital admitting privileges last month. In Missouri, the 8th Circuit Court of Appeals upheld a Missouri admitting privileges law, although that state’s version provides for exceptions if hospitals agree to accept patients for any emergency.
Many of the state restrictions are take from the AUL annual review of abortion laws, “Defending Life.” AUL provides state legislators with model legislation and strategizes with them on how to pass these laws. The Center for Reproductive Rights’s Jordan Golberg attacks “Defending Life” as a pro-life “playbook.”
The AUL has led the way in encouraging laws that require abortionists have local hospital admitting privileges near the abortion facilities in which they operate. This prevents abortionists from flying in from other locales to commit late-term abortions. Alabama, Mississippi, North Dakota, and Wisconsin have passed such laws in 2013, but in each case judges have either overturned the law or blocked them from taking effect by slapping an injunction on them while the courts determine whether such restrictions are constitutional.
Louise Melling, the ACLU’s deputy legal director, told Bloomberg News that “the courts are incredibly important stopgaps.” Polls shows widespread support for most limits on abortion, especially informed consent mandates, defunding initiatives, and late-term restrictions. Most states outside the most liberal jurisdictions such as California, Massachusetts, New York, and Vermont, have some limits on abortion. Even so-called Democratic-leaning Blue States, such as Oregon and Pennsylvania, have enacted pro-life laws in recent years. Melling complains, “the impact of these restrictions is real.”
The Center for Reproductive Rights, Planned Parenthood, and the American Civil Liberties Union have led the way legally challenging pro-life laws. In Wisconsin, PP and ACLU teamed up to argue that local admitting privileges were a “burden” to women seeking abortions after Planned Parenthood threatened to close half of their abortion facilities if the law stood. Proponents of the law maintain that laws help protect women by guarantying emergency care for women who obtain abortions. In North Dakota, State Judge Wickham Corwin countered that abortion was a safe procedure, and therefore the law was unnecessary, when he threw it out on July 31. Corwin also stated, “the legislature has shown open disdain for the rights clearly protected by the federal Constitution,” even though the document is silent on the issue of abortion.
On their webpage, Planned Parenthood calls on women to fight pro-life politicians: “Our opponents have proven time and again that they will stop at nothing to force their agenda on women nationwide.” Charmaine Yoest, president of Americans United for Life, challenges the media and Democratic narrative that support for pro-life initiatives is anti-woman, turning the charge around, commending politicians “for attempting to protect the lives and health of women and girls routinely victimized by a profit-hungry abortion industry, but sadly a large, well-funded, and powerful anti-woman coalition worked to block these much needed legal protections.”
In the aftermath of the Wendy Davis filibuster, Yoest praised the Texas politicians who advanced “cutting-edge, protective legislation,” and says there is a “growing consensus across the country that abortions late in pregnancy are especially harmful to women.”
Despite the growing number of pro-life measures being considered and passed, it should be remembered that state-level restrictions are nothing new. Mary Spaulding Balch, state-legislation director for the National Right to Life Committee, told Bloomberg, “not a single year has gone by where we didn’t pass some piece of substantive legislation … Our state affiliates have been in the trenches from the beginning.”
What is new is that as the as pro-life movement has moved to accept compromises to cut back the abortion license, the pro-abortion side sees any restriction as an all-out assault on what they see as the right to abortion. If these battles show anything, it is that compromise is not possible to bridge the gap between the pro-life and pro-abortion sides, and that while the pro-life side has won popular and legislative support, abortion supporters need the courts to maintain their policy preferences.