Georgia, Ohio, Mississippi, Kentucky and now Alabama. In the past three months, five states have enacted laws that severely restrict access to abortion — sometimes as early as six weeks into a pregnancy. The Alabama law that was signed by the governor last week bans abortion in nearly all cases, with no exceptions for rape or incest, and carries up to a 99-year prison sentence for doctors who perform the procedure. This recent spate of abortion restrictions marks the most direct challenge in recent memory to Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion until the fetus reaches viability, usually around 24 weeks of pregnancy.
The push for these laws didn’t come out of nowhere. They’re part of an aggressive new strategy in the legal fight over abortion, which has escalated since Republican lawmakers swept state legislatures in 2010. Because of these efforts, it’s already more difficult to get an abortion in some parts of the country than it was a decade ago. Now, rather than continuing to chip away at abortion access, some anti-abortion advocates want to bring a case to the Supreme Court that could lead to the overturning of Roe and allow states to ban abortion completely — a goal that seems possible for the first time in decades because of a new five-justice conservative majority on the Supreme Court.
“There comes a time when we need to stop regulating around the edges of abortion,” said Janet Porter, an anti-abortion activist and early proponent of “heartbeat” laws, like Georgia’s, that ban abortions after fetal cardiac activity can be detected, which can be as early as six weeks into a pregnancy. These laws, she said, were “crafted to be the arrow in the heart of Roe v. Wade.”
But this bolder approach may be a gamble. That’s because bans on abortions in the first trimester of a pregnancy (up to 13 weeks) aren’t in line with most Americans’ views on abortion. And embracing this new strategy might actually slow anti-abortion advocates’ momentum if both Republicans and Democrats use the bans to seize on the Supreme Court as a campaign issue in 2020.
Why abortion opponents turned to banning abortion outright
Since 2011, state legislators have passed hundreds of restrictions on abortion, according to the Guttmacher Institute, a research organization that supports legal abortion. These state-level efforts have been extensive and diverse, and even though the total number of laws passed has varied from year to year and appears to be declining overall, the uptick in first-trimester abortion laws in 2019 signal a willingness among at least some abortion opponents to aim directly at Roe. The chart below shows six types of abortion restrictions that affected access for adult women and how common they were in each year.1 (Not all laws shown below are in effect, however; some have been either temporarily or permanently blocked by the courts.)
Notably, many of these restrictions didn’t directly challenge the constitutional right to abortion; instead, they whittled away at access to legal abortion by imposing regulations on clinics and abortion doctors and adding requirements like mandatory ultrasounds, counseling and waiting periods. And although these efforts haven’t been uniformly successful in the courts, abortion opponents haven’t lost steam. As you can see in the chart, even after a big setback at the Supreme Court in 2016, when five justices voted to overturn a set of requirements on clinics that perform abortions in Texas, the restrictions on abortion clinics made up a significant proportion of restrictions in the year after the ruling, although they accounted for a smaller share in 2018 and 2019.
Other laws targeted particular kinds of abortion — for example, a common type of second-trimester abortion — or banned it for certain purposes, like abortion for sex or race selection or because of genetic anomalies. States are permitted by the Supreme Court to regulate abortion after the fetus is viable, which usually occurs between 24 and 28 weeks of pregnancy. And from 2011 until this year, bans on abortion that were close to this viability threshold — often around 20 weeks of pregnancy — were more common than first-trimester bans, which have seen a spike in 2019. As you can see in the top left of the chart, bans on abortion during the first few months of pregnancy have become increasingly prominent over the past two years.
The result is a complicated patchwork of abortion laws that have made it more time-consuming and expensive to get the procedure in certain parts of the country. In addition to counseling, waiting period and ultrasound requirements — all of which can increase the time and cost associated with the procedure — clinics have been steadily closing over the past few years because of a combination of factors, including the new state laws. Missouri’s abortion providers have dwindled from six in 2008 to one today. And dozens of abortion clinics across the South and Midwest were shuttered because of state restrictions.
In some ways, the success of these restrictions may have set an expectation that a full abortion ban would be next, said Elizabeth Nash, senior state issues manager at Guttmacher. “Once you pass five, 10, 15 abortion restrictions, there’s not much left to do but ban abortion outright,” she said.
But this more extreme strategy is controversial even within the anti-abortion movement. Clarke Forsythe, senior counsel for Americans United for Life, an organization that is currently advocating for 20-week abortion bans and other restrictions like mandatory ultrasounds, said that he thinks the new wave of laws is unlikely to tempt the Supreme Court. “I think the court simply will not hear them,” he said.
Importantly, the new laws represent a shift away from a message that has been central to many of the laws that have passed since 2011 — the idea that restrictions on abortion can be good for women. In legislative debates and court cases, proponents of abortion restrictions have contended that laws like clinic regulations and mandatory ultrasounds are reasonable and even beneficial because they ensure that women really want an abortion and are receiving the best medical care, although many in the medical community say these regulations are unnecessary and even harmful. Mary Ziegler, a professor at Florida State University College of Law and the author of “After Roe: The Lost History of the Abortion Debate,” said that it was “striking” how the Alabama and Georgia laws largely abandoned this argument, instead focusing on the need to protect fetal life. But this move is mostly out of step with public opinion — and it also may be a stretch at the Supreme Court.
Most Americans don’t want to ban abortion outright
According to polls, most Americans don’t seem like they want the Supreme Court to overturn Roe v. Wade: For example, a Gallup poll from July 2018 found that 64 percent of Americans want the ruling to remain in place. And in an August 2018 ABC News/Washington Post poll — the last time they asked respondents this question — two-thirds of Americans said they either wanted the Supreme Court to make it easier to get an abortion (21 percent) or to leave the ability to get an abortion the same as it is now (45 percent). Thirty percent wanted the Supreme Court to make it more difficult to get an abortion.
Restrictions on abortion later in pregnancy — like 20-week abortion bans — have received majority support in some polls, and according to the 2018 Gallup poll, 65 percent of Americans said abortion should be illegal in the second three months of pregnancy. But 60 percent of Americans in that same Gallup poll said abortion should be legal in the first three months of pregnancy. The new Alabama law’s lack of exceptions for cases of rape or incest may make it particularly unpopular, considering that Gallup also found that nearly 80 percent of Americans think abortion should be legal in at least some circumstances.
Farah Diaz-Tello, senior counsel for If/When/How, a group that supports and advocates for abortion access, said that until now, abortion-rights supporters have had a hard time mobilizing voters because abortion has been seen as a “niche” issue, despite the proliferation of restrictions at the state level. That abortion opponents are now directly attacking the legality of first-trimester abortion — rather than focusing on restrictions on access — could be a “wake-up call” for people on the left, she said.
Predicting what the political fallout will look like is tough, though. It might simply exacerbate regional and political divisions in the country rather than handing a clear victory to either side. But either way, the issue seems likely to become even more politicized and could become important in the 2020 presidential race.
A political backlash may make it harder for the Supreme Court to respond
Many legal experts believe Chief Justice John Roberts and the Supreme Court’s conservative majority are unlikely to overturn Roe all at once, especially because the justices could instead hollow out the right to abortion gradually by allowing states to impose more and more restrictions couched less controversially as protections for women’s health.
For proponents of laws like Alabama’s, the danger is that the state-level bans might make Roberts or the other conservatives on the court even warier about taking any abortion case in the short term. That’s because they might be reluctant to rule on a hot-button topic that might be an issue in the 2020 election. There are other abortion cases in the court’s pipeline, but so far, the justices have seemed reluctant to hear them. And if the political furor around the new state laws escalates — or even turns the Supreme Court into a campaign issue in 2020 — a foray into the abortion debate may seem even less appealing for the conservative justices. There is evidence that even justices with lifetime appointments respond to public opinion, and Roberts is particularly sensitive about perceptions that the court is just another arm of a partisan political machine. “It’s possible the court decides they’re just not going to deal with this right now, while it’s so politicized,” Ziegler said.
On the other hand, abortion opponents may not have much to lose by trying a more dramatic approach. Even if the Supreme Court declines to overrule Roe v. Wade now, it’s difficult to imagine Roberts, who voted with the conservative minority to uphold Texas’s abortion restrictions in 2016, doing anything that will make it easier to access abortion in areas of the country where it’s now harder to obtain an abortion than it was a decade ago. The justices may be reluctant to wade into the freshly ignited abortion debate during an election year, but Roe’s future is still very much in doubt.
From ABC News: