Conservative states that ran into legal trouble passing some of the most restrictive abortion laws in the nation last year have shifted their approach for 2014: smaller instead of sweeping.
Rather than bans that directly challenge Roe v. Wade, many states are again going for more incremental measures that address the physical space requirements of clinics, physicians’ qualifications and the use of certain procedures. The move is hardly a retreat, abortion opponents say, but rather a strategic decision that they expect could be nearly as effective in less time. Compared to broader moves, restrictions that are more narrowly drawn often pass judicial muster.
“I think the public understands the abortion bans,” said Gretchen Borchelt, director of state reproductive health policy at the National Women’s Law Center. “But they don’t understand how harmful things like regulation of clinics and restriction on medication abortion are to provider practice and to women’s access to abortion.”
Efforts to limit abortion in various ways or at various stages have only accelerated in recent years. Clinics in numerous states have been forced to close, leaving women with few options and energizing abortion opponents.
In 2013, the Arkansas Legislature made abortion illegal after 12 weeks, while North Dakota lawmakers prohibited it after six weeks — a point at which many women don’t even know they’re pregnant. Three states passed 20-week bans, also known as fetal pain laws, bringing to nine the number of states outlawing abortion midpregnancy.
Yet courts subsequently blocked the first-trimester bans of North Dakota and Arkansas, legal fights continue over the bans in other states, and the movement to restrict abortions at 20 weeks — on the grounds that a fetus at that stage of development feels pain — remains highly controversial. Because of those crosscurrents, strategies are evolving. Both sides expect their upcoming encounters to be fought as much over step-by-step actions as big, dramatic approaches.
Developments are certain in state legislatures, the courts and even at the ballot box, a triple front that has many abortion-rights advocates braced. The issue could also factor again into local and congressional political campaigns.
Some approaches will push into different territory, including a Colorado proposal that asks voters to consider an embryo or fetus a separate legal “person” under the state’s constitution in acts of violence against women. This differs from other “personhood” initiatives, which thus far have failed to pass in at least 10 states; its intent is to protect a woman and her unborn fetus by recognizing the fetus as a second victim should she miscarry because of a criminal act. But abortion-rights advocates say the language, backed by a national “personhood movement,” does nothing to discourage violence against women and only complicates such cases.
And a North Dakota measure appearing on the ballot in November takes the concept a major step further, giving an embryo legal rights under any circumstance from the moment of conception. It would outlaw almost all abortions and some forms of birth control. Critics say it would also restrict fertility treatment and stem cell research.
More commonly, however, upcoming efforts will focus on regulations. Their underlying intent, abortion-rights advocates charge, is to systematically end abortions. Abortion opponents counter that the procedure and the places that perform it warrant greater scrutiny to ensure women’s safety.
“This past year was a real watershed moment,” said Charmaine Yoest, president and CEO of Americans United for Life. The public became increasingly concerned about abortion providers being “out of control” and in need of greater regulation, Yoest said, particularly after the trial and conviction of Philadelphia abortion doctor Kermit Gosnell.
A report just released by the Guttmacher Institute, which tracks reproductive health issues, reflects how that concern was manifested. Nearly two dozen states enacted 70 abortion restrictions during 2013, the second-highest annual total ever, according to the report.
Texas may continue to be a key test case in 2014. About a dozen clinics have shut since a law took effect there in October requiring abortion providers to have admitting privileges at a hospital within 30 miles. The law also says doctors must be physically present when administering a medication abortion and must follow the FDA-approved protocol for the procedure, which entails a two-day administration with follow-up visit, rather than use a different protocol based on more recent medical evidence that many physicians favor. Medication abortions use drugs, not surgery, to terminate a pregnancy.
After a district court judge blocked the admitting privileges requirement and limited the other conditions, the state successfully appealed. In an unusual move, the 5th U.S. Circuit Court of Appeals has allowed both provisions to stand while the case is argued further. The U.S. Supreme Court denied an emergency request by abortion rights advocates to stop enforcement in the interim.
Those judicial decisions have affected women throughout Texas, particularly in rural areas, according to Terri Burke, the American Civil Liberties Union’s state director. Some 9 million women are now hundreds of miles from a facility that performs an abortion, she said, and medication abortions have almost been eliminated statewide.
The 5th Circuit heard the case Monday, and it’s likely to uphold the statute, said law professor Caitlin Borgmann of City University of New York. Borgmann, who has worked extensively on reproductive rights, expects the case ultimately to go before the Supreme Court.
At each level, the outcome would have repercussions well beyond Texas. Admitting privileges were also tightened last year in Alabama, Mississippi, North Dakota and Wisconsin, although the restrictions were subsequently blocked in all four states. And tougher clinic regulations were passed in Alabama, Indiana, North Carolina and Virginia.
Other states seem poised to follow suit in 2014, and advocates say that several have expressed interest in legislation restricting medication abortions.
West Virginia’s attorney general has launched an investigation into the state’s abortion regulations, which suggests that regulation is on the horizon, Borchelt said. Florida’s Legislature has repeatedly considered measures to limit who can own an abortion clinic, among other regulations, and Elizabeth Nash, state issues manager for the Guttmacher Institute, anticipates that pent-up support may push one of those bills forward this year. Across the border in Georgia, the Right to Life affiliate there has published a several-hundred-page document on abortion regulations — a likely harbinger of forthcoming legislative proposals.
Some of the impetus for increased regulation comes from the case involving Gosnell, who in May was found guilty of first-degree murder for the deaths of three infants delivered during late-term abortions and then killed. Atrocious conditions were uncovered at his clinic, including bloody floors and nonsterile equipment.
In the case’s aftermath, Americans United for Life added a new enforcement module to its annual package of model legislation. It’s “a way to empower communities to take action if the political environment has allowed a house of horrors to go unregulated” or existing regulations have been inadequately enforced, Yoest said.
Abortion bans may continue to advance in 2014, but most will aim for a 20-week cutoff rather than any earlier point in a pregnancy, both sides predict. A dozen states have passed such laws, although those in Arizona and Georgia have been blocked and Idaho’s was ruled unconstitutional. The U.S. Supreme Court is to decide in January whether to review Arizona’s law. The unsettled legal situation doesn’t seem to be discouraging the handful of states already known to be considering 20-week bans.
“For us, that’s the focus and the goal. It’s keeping the eye on the prize,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, a national organization that opposes abortion. Dannenfelser points to Florida, South Carolina, Pennsylvania and Wisconsin as primed for successful action.
Yet anti-abortion groups aren’t the only ones trying to turn their ideas into policy. Organizations that support abortion rights say the energy and outrage that emerged after Texas Sen. Wendy Davis filibustered to stop that state’s recent law is fueling proactive efforts elsewhere.
California subsequently passed two laws expanding access to abortion this fall, including a bill that permits nonphysician health care providers to administer first-trimester aspiration abortions, which involve the use of a tube and suction.
And Pennsylvania lawmakers have introduced a package of legislation promoting women’s health and well-being. One bill would create a 15-foot buffer zone around facilities where abortions are performed.
“People are tired of the news constantly being about the restrictions that are moving forward,” said Kelly Baden, policy and advocacy adviser for the Center for Reproductive Rights. “People are really reaching their tipping point and are ready to change the conversation.”
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