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The flurry of legislative activity in 2018 follows a year where 19 states adopted 63 new restrictions on abortion, the largest number of new anti-abortion laws in a year since 2013.
By Brian Fraga, National Catholic Register, 2/20/18
WASHINGTON — The pro-life movement appears poised to continue seeing success at the state level as legislatures in at least nine states are considering enacting new laws to regulate and restrict abortion.
The flurry of legislative activity follows a year where 19 states adopted 63 new restrictions on abortion, the largest number of new anti-abortion laws in a year since 2013, according to the Guttmacher Institute, an abortion research firm with historical ties to Planned Parenthood.
“It shows the strength of pro-life support in the states to see this activity,” said Clarke Forsythe, senior counsel of Americans United for Life.
Including the new pro-life laws adopted in 2017, the pro-abortion-rights Guttmacher Institute reports that states have enacted 401 abortion restrictions since January 2011. The last seven years account for 34% of abortion restrictions enacted by states since the U.S. Supreme Court declared a constitutional right to abortion in its 1973 ruling in Roe v. Wade.
Among the bills under review in several states are measures to ban abortion at 20 weeks of pregnancy — the point when pro-life advocates say unborn children can feel pain in the womb — as well as legislation intended to prohibit abortions on babies diagnosed with Down syndrome and to prevent state Medicaid funds from going to abortion providers.
Forsythe told the Register that about 20 to 30 states now have working pro-life majorities in their legislatures and pro-life governors. He added that the 2016 elections, when Republicans secured majorities in several states, created “the best political conditions in the states for pro-life policies since Roe v. Wade.”
“I think, certainly, it shows that there is strong support in the states for pushing for the strongest possible limits on abortion, in the face of a Supreme Court that still has a five-justice pro-abortion majority,” Forsythe said.
In its abortion-related jurisprudence, the U.S. Supreme Court has said states can regulate abortion, with conditions. For example, in 1992, the high court ruled in Planned Parenthood v. Casey that states may not place “undue burdens” on the constitutional right to abortion before fetal viability.
The Supreme Court cited the undue-burden principle in its 2016 decision to strike down a Texas state law that placed strict regulations on abortion facilities. A few cases are currently in the federal judicial pipeline challenging laws passed last year by Texas and Arkansas that banned abortion by dismemberment.
As of now, Forsythe said the high court has not shown any indications that the justices are “chomping at the bit” to hear any new abortion-related cases. Forsythe noted that the Supreme Court declined in January 2014 to hear arguments on Arizona’s 20-week abortion ban, which a lower court deemed unconstitutional.
“The states have more leeway than what pro-abortion advocates would say, but we’ve had 45 years of confusion and inconsistency from the Supreme Court,” Forsythe said. “The thing we’ve never gotten from the Supreme Court is clarity in its abortion doctrine, which is one reason why the court’s abortion doctrine is still severely unsettled, despite 45 years of Roe v. Wade.”
Pushing the Boundaries
The uncertainty of what the nation’s high court might think of laws, such as the state-level versions of the Pain-Capable Unborn Child Protection Act, has not stopped pro-life lawmakers in dozens of states from pushing the boundaries of regulating, and, in some cases, restricting, abortion for reasons of protecting fetal life and maternal health.
The Indiana Senate has approved a bill that would require medical providers to report additional information about patients who seek treatment for abortion-related complications. Glenn Tebbe, executive director of the Indiana Catholic Conference, told the Register that with chemical abortions on the rise, more women have had to seek emergency help in his state.
“What we’re trying to do there is have the abortion complications as being one thing that would have to be reported by hospitals, in order to make sure we find out where people are getting these bad pills from,” Tebbe said. “It’s just a matter of public health to make sure we don’t have ongoing problems and that we’re not unaware of finding some way to address them.”
Contrary to the abortion lobby’s arguments, Tebbe said the Indiana bill does not impose any new abortion restrictions.
“Unfortunately, it’s not going to stop anyone who wants an abortion from getting one,” Tebbe said. “It’s intended to protect women as much as we can.”
Other states are considering new laws designed to provide information about abortions. In Idaho, a state Senate panel has introduced legislation to give information to women saying that abortions induced by medication can be halted after taking just one of two pills. A legislative committee in the Georgia Legislature has approved a bill to require underage girls seeking abortions to justify why they should be allowed to avoid notifying a parent or guardian.
Some states are looking at enacting new restrictions. The House of Representatives in Mississippi has voted to advance a bill that would make the Magnolia State the only state to ban all abortions after 15 weeks of pregnancy. The bill, which now goes to the state Senate, allows exceptions for when a woman’s life is in danger or when the unborn child has a severe abnormality.
In a joint statement, Bishop Joseph Kopacz of Jackson and Bishop Louis Kihneman III of Biloxi said the Mississippi House of Representatives “is to be commended for voting to protect unborn human life after 15 weeks of gestation, and we hope and pray that the state Senate will, in turn, enact such protection.”
Meanwhile, a state senate judiciary committee in Iowa has approved legislation to ban abortion once a fetal heartbeat is detected — which can be as early as six weeks — while lawmakers in Tennessee are seeking to ban Medicaid funding from going to abortion providers such as Planned Parenthood.
Protecting Mothers and Babies
In Missouri, lawmakers are considering several bills to restrict access to abortion, including legislation to ban abortions after 20 weeks of pregnancy and to prohibit abortions performed on the basis of sex, race and Down syndrome. And in South Carolina, Ingrid Duran, legislative director for the state chapter of the National Right to Life Committee, recently testified on behalf on a pending bill to ban abortion by dismemberment. The bill has already passed the state House of Representatives and has been recommended by a subcommittee for approval by the whole S.C. Senate.
Duran told the Register that there are also pending dismemberment ban bills in Florida and Ohio. She said eight states currently ban that method of abortion and added that at least two states could pass similar laws this year.
“The focus at the state level has been on protective legislation, focusing on protecting the baby and the mother,” Duran said. “We see that a lot, not only with the dismemberment bans, but also with laws like the Pain-Capable Child Protection Act and laws based on informed consent.”
As in Missouri, Duran said measures to ban abortion on the basis of Down syndrome have been introduced in Illinois and Pennsylvania. In Maryland and Virginia, Duran said legislators are looking to amend their states’ fetal homicide laws to extend protection from fetal viability to all stages of pregnancy.
Utah is also considering a bill to prevent doctors from performing abortions on the basis of Down syndrome, which critics are warning is unconstitutional. Last year, Ohio passed a similar law, which is scheduled to take effect March 23. The American Civil Liberties Union has filed a lawsuit arguing that the Ohio law is unconstitutional. The Ohio Catholic bishops have also recently endorsed a bill, passed by the state Senate, to require the humane burial or cremation of unborn children following an abortion.
Abortion Lobby’s Targets
On the defensive in many states, the abortion lobby is fighting back where it can, especially in liberal-leaning “blue states” such as Washington and California.
“We happen to be Opportunity No. 1 for them right now. The state of Washington is under assault from the pro-abortion constituencies. There’s no other way to put it,” said Joe Sprague, executive director of the Washington State Catholic Conference.
The Washington Senate has passed a bill to require health insurers to offer maternity care that covers elective abortions and contraception. A separate bill would require employers to cover contraceptives for their employees, free of charge.
“The two bills combined put a lockdown on businesses or other employers that for reasons of conscience or religious liberty would choose not to provide those services,” said Sprague, adding that the bills do not have adequate conscience protections. An existing state insurance law has some language for religious liberty and conscience protection, but Sprague said it is unclear if that law would provide meaningful protection if the pending bills become law.
And the California Senate has voted for a bill that would make California the first state to require public universities’ health centers to offer abortion pills to students. Ned Dolejsi, executive director of the California Catholic Conference, told the Register that the state’s Catholic bishops have joined other pro-life groups across the state in a campaign of letter-writing, lobbying and public testimony to fight the bill.
“This is basically an all-in by the abortion industry to fully promote the notion of abortion as a solution to a young woman’s pregnancy on campus,” Dolejsi said. “It’s certainly inappropriate for the state to be totally promoting abortion.”
In blue states such as California, Dolejsi said the abortion lobby is pushing their cause “as dramatically as they can.”
Said Dolejsi, “It’s indeed frustrating, but this is a moment that we’re called to engage, so we’re fully engaged.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.