Introduction
In 1992, the Supreme Court, in Planned Parenthood v. Casey, upheld women’s constitutional right to abortion services, but allowed certain leeway in placing restrictions on access to reproductive healthcare. Since then, right-wing politicians have increasingly pushed through state laws meant to chip away at the right to choose and undermine the protections of Roe v. Wade. These state-level draconian proposals are intended to cripple the ability of women to access reproductive health services. Burdensome waiting periods and parental notification requirements have been passed throughout the country, and now anti-choice activists are increasingly turning to new ways to undercut women’s healthcare and constitutionally protected liberties.
Following the 2010 elections, more state legislatures have become hostile to choice. Their efforts to undermine reproductive rights include ultrasound requirements that impose callous and cruel psychological pressure on women who have made the decision to terminate their pregnancies; targeted restrictions on abortion providers (TRAP laws), which levy unnecessary regulations against clinics that could force many to close; and constraints on abortions supposedly sought because of the "race and gender" of the fetus. Some states are even considering legislation that could legalize the murderof abortion providers.
Not only are radical state legislators threatening the ability of women to gain access to reproductive health services, but they are also testing the boundaries of both Roe and Casey. States are now weighing laws that challenge well-accepted medical research, banning abortions in the second trimester under the guise of "fetal pain" and even in the first trimester at the detection of a fetus’s heartbeat. Among the most radical measures being considered are "personhood" laws, which would declare zygotes and fetuses fully legal persons completely separate from their mothers. Once at the extreme fringe of the anti-choice movement, personhood laws now have a chance at passing in a number of states and could lead to new challenges to Roe v. Wade. Along with the attacks on choice and women’s healthcare coming from the Republican-controlled House of Representatives, these new and dangerous laws emerging from the states put women’s healthcare and reproductive freedom at grave risk.
Ultrasound Requirements
Legislation that would require doctors to perform ultrasounds on all women seeking abortions, even when not medically necessary, has been introduced in states including Texas, Florida, Arizona, and Wyoming. Ultrasound requirements are widely acknowledged to be medically unnecessary attempts to place psychological pressure on women who have decided to seek abortions.
Such requirements also risk actively harming the fetus, according to the Association of Obstetricians and Gynecologists. According to the Houston Chronicle, the association warned that if they use the sonogram in the manner described [by the Texas ultrasound bill], the prolonged exposure to ultrasound waves could hurt the woman or damage the fetus." The Guttmacher Institute notes that "since routine ultrasound is not considered medically necessary as a component of first-trimester abortion, the requirements appear to be a veiled attempt to personify the fetus and dissuade a woman from obtaining an abortion."
The Texas House and Senate recently passed a bill that would require women to undergo ultrasounds at least 24 hours before having an abortion. In the majority of cases, a woman would be forced to hear a detailed description of the scan. Gov. Rick Perry has fast-tracked the legislation through the Republican-controlled legislature, declaring it an "emergency priority." Sen. Dan Patrick, the bill’s author, recently declared, "This is God’s time to pass this bill."
Florida’s GOP-led state legislature passed an ultrasound-requirement bill last year only to have it vetoed by then-Governor Charlie Crist, who said it "places an inappropriate burden on women seeking to terminate pregnancy" and "unwisely expand[s] the role of government." The bill’s sponsors are planning to reintroduce it this year. If passed, the ultrasound bill will most likely be signed by newly elected Republican Gov. Rick Scott, who condemned Crist’s veto of the bill during his campaign last year.
Biased Counseling
State laws increasingly attempt to interfere with the relationship between a woman and her doctor by forcing health professionals to provide erroneous and deceptive information about abortion. State-designed counseling sometimes incorporates inaccurate information by falsely linking abortion to psychological harm, breast cancer, and future fertility problems, and is frequently coupled with a mandatory 24-hour waiting period that makes it even more difficult for women to obtain abortions.
On February 22, Republicans in the South Dakota House and the State Senate passed a bill, supported by the Governor, that would require women seeking abortions to first visit a "pregnancy help center," also known as a crisis pregnancy center (CPC), which must inform women of "the risk factors" and "complications associated with abortion," and "have a private interview to discuss her circumstances that may subject her decision to coercion."
In 2006, a congressional committee looked into federally funded CPC’s, and found that "the vast majority of the federally funded pregnancy resource centers contacted during the investigation provided information about the risks of abortion that was false or misleading," and "in many cases, this information was grossly inaccurate or distorted." The National Abortion Federation notes that such centers are mostly staffed by volunteers whose "main qualifications are a commitment to Christianity and anti-choice beliefs," rather than by medical professionals, and "many CPCs are connected with religious organizations, but few disclose that fact in their advertising."
Kentucky’s House of Representatives is considering an amendment slipped into an unrelated bill about regulating nursing homes that compels doctors to tell patients seeking abortions about purportedly higher rates of cancer and psychological "anguish" among women who have had abortions. Such claims are not supported by scientific research.
Race and Gender Requirements
On February 21, the GOP majority in the Arizona House of Representatives voted 41-18 to pass a bill that would criminalize abortions sought because of the race or sex of the fetus. The bill’s sponsor, Republican Rep. Steve Montenegro, claims that "there are targeted communities that the abortion industry targets." If his bill becomes law, women seeking abortions in Arizona will have to sign a statement declaring that race or sex was not the reason they sought the procedure. The biological father or the woman’s parents, in the case of minors, could sue the doctor and health professionals involved in terminating the pregnancy on behalf of the fetus "if they were aware of race- or gender-based procedures and failed to report them."
According to the Cronkite News Service, the vast majority of abortions (92 percent) take place "before 13 weeks of pregnancy," while doctors cannot determine the sex of the fetus "until at least the 17th week."
Anti-choice activists consistently portray legal abortion as a stealth genocide committed against minority communities, painting groups such as Planned Parenthood as "racists" and "Nazis." However, studies show that the statistically higher abortion rate among women of color is due to a higher rate of unwanted pregnancies, with no evidence pointing to a racially-motivated campaign.
Michelle Steinberg of Planned Parenthood points out that the bill "could be a slippery slope in terms of requiring women to disclose why they’re choosing abortion."
TRAP Laws: Targeted Restrictions on Abortion Providers
Virginia may soon enact a "targeted restrictions on abortion providers" (TRAP) law that could force most of the state’s abortion clinics to shut down. Members of the Republican-led House of Delegates stealthily amended a bill on infection preventions and hospital security, which had already passed the Senate and a House committee, to mandate that only clinics that meet hospital specifications can perform first trimester abortions. The state Senate approved the bill, with Lt. Governor Bill Bolling casting the tie-breaking vote. Gov. Bob McDonnell is expected to sign it into law shortly.
The Richmond Times Dispatch reports that Gov. McDonnell’s action "effectively could force most of the commonwealth’s clinics to shut down because of the costs associated with upgrading facilities to hospital standards." The law would likely force seventeen of the twenty-one clinics offering abortion services in the state to close, particularly impacting rural and low-income communities.
Proponents of TRAP measures claim that abortion clinics should be required to meet the same standards as hospitals because of the purported health risks involved in abortion procedures. These arguments conflict with the facts about abortion, which, since it was legalized has become one of the safest medical procedures in the United States. According to the National Abortion Federation, just "0.3% of abortion patients experience a complication requiring hospitalization."
Like other TRAP laws, the Virginia law mandates that clinics performing first trimester abortions—which currently must meet all the regulations of any other clinic that provides surgical medical procedures—must additionally meet the same parking lot, room, doorway and hallway dimensions as hospitals. Jodi Jacobson of RH Reality Check writes that these unwarranted architectural changes could cost each clinic upward of $2 million, despite the fact that "the complication rate from abortion is vastly lower than that of breast augmentation, another procedure commonly performed in physicians’ offices."
Constitutional law professor Lawrence Tribe of the Harvard Law School doubts the measure’s constitutionality, arguing that its "transparent purpose and effect would be to make such early abortions far more difficult if not impossible for many women to obtain." But the Center for Reproductive Rights adds that "TRAP laws have proven extremely difficult to challenge in court."
David Nova, vice president of Planned Parenthood Health Systems, said that ultimately these unnecessary and costly regulations will make abortion services "considerably more expensive and therefore less accessible, in particular for low-income clients."
Virginia is not alone in considering TRAP laws this year. The Arizona House just passed a measure that would place similar unnecessary restrictions on abortion providers, potentially curbing services at three in-state clinics.
Fetal Pain Laws
A number of states are considering measures, based on disputed scientific claims about when a fetus can feel pain, that would drastically limit when in a pregnancy a woman could obtain an abortion.
Kansas, Oklahoma, Ohio, Florida, Georgia, and Missouri are considering bills that would prohibit abortion during the second trimester of a pregnancy.
On February 23, the GOP-dominated Kansas House passed a measure that would criminalize abortions after the 21st week of gestation, and the Republican leaders of the Missouri House and Senate have pledged to pass a bill that would ban abortion after the 20th week. Republican legislators in Florida, Idaho, Minnesota and Georgia have introduced bills that ban abortion after the 20th week, and an Ohio proposal places the ban at 22 weeks "if a test determines a fetus is ‘viable.’"
Kansas State Rep. Barbara Bollier, a Republican and former anesthesiologist, disputed the scientific basis for such bills, saying, "Most medical journals don’t believe pain is felt until 29 to 30 weeks."
A major study by the Royal College of Obstetricians and Gynecologists concluded that a fetus "feels no pain before 24 weeks." Even after 24 weeks, the study found, "it is difficult to say that the fetus experiences pain," as it experiences "a continuous sleep-like unconsciousness or sedation."
The Guttmacher Institute has found that just 12% of abortions in the U.S. take place after the 12th week of gestation, and a miniscule 1.5% take place after the 20th week.
Heartbeat Laws
Religious Right activist Janet Porter of Faith2Action is championing legislation in Ohio that would make abortion a crime as soon as the heartbeat of the fetus is detected. Porter, who recently prayed that Christian fundamentalists will gain control of "every single level of government," is attempting to rally grassroots anti-choice activists to apply pressure to the state legislature’s GOP leadership. State Rep. Lynn Wachtmann, the chairman of the Health Committee who has been dubbed "Captain Caveman" for his ultraconservative views on social issues, is the bill’s chief sponsor. The bill already has fifty cosponsors, giving it the votes to pass the ninety-nine member body, and Porter is bringing in a fetus to "testify" before the House Health Committee as a legislative witness.
Porter is an unabashed extremist: she believes that President Obama is attempting to intern and kill Americans through the swine flu vaccine and that "evil" Obama supporters are going to hell for cursing America by electing him President.
According to the Dayton Daily News, the heartbeat legislation will "ban abortion as early as 18 to 24 days after conception." Case Western Reserve University School of Law Professor Jessie Hill called the bill "clearly unconstitutional," since it criminalizes abortion in the first trimester of pregnancy.
Robin Marty of RH Reality Check writes that the heartbeat bill, if it became law, would "eliminate virtually all abortion."
"For most women, that would provide a window of two weeks or less in order to learn she was pregnant, make her decision about the pregnancy, arrange for an appointment, gather money for an abortion, obtain the mandatory counseling and sit through the required 24 hour waiting period," writes Marty. "For a woman with irregular menstrual cycles, by the time she realizes she is pregnant it likely would already be too late to do anything but continue the pregnancy."
Porter claims that legislators in states like Oklahoma, Georgia, Texas, Kansas, and Arizona are planning to introduce their own version of the heartbeat bill. Already, Arizona’s mandatory-ultrasound bill would force doctors to "provide the woman with an opportunity to view the active ultrasound image of the unborn child and hear the heartbeat of the unborn child if the heartbeat is audible."
Personhood Laws
The effort to classify zygotes and fetuses as "persons" completely separate from their mothers and with full legal rights first appeared in Colorado, where voters have consistently voted down a so-called "personhood amendment" to the state constitution. Personhood laws would not only criminalize abortion with no exceptions, but also ban common forms of birth control, stem cell research, and in-vitro fertilization. This year, personhood measures are under serious consideration in Iowa, Mississippi, Florida, North Dakota, and Georgia, and the organization Personhood USA hopes to bring personhood campaigns to states including Texas, Montana, and Wisconsin.
In Mississippi, a personhood amendment to the state constitution will be on the ballot in 2011. Supporters of the measure include the American Family Association, Liberty Counsel, Lt. Governor and Republican gubernatorial candidate Phil Bryant, U.S. Rep. Alan Nunnelee, and Sen. Roger Wicker, who plans to introduce a bill "identical" to the personhood amendment in the U.S. Senate.
Les Riley, the architect of the Mississippi personhood amendment and the leader of Personhood Mississippi, is a featured blogger for the group Christian Exodus, which has the "goal of forming an independent Christian nation that will survive after the decline and fall of the financially and morally bankrupt American empire." Christian Exodus, which has close ties to the separatist and Neo-Confederate League of the South, has attempted to move thousands of supporters to South Carolina in order to "form a biblically inspired government and secede from the United States." The group also encourages adherents to move to Panama and Idaho in order to build theocratic settlements.
On February 11, the GOP-controlled North Dakota House, by a 68-25 vote, approved a bill that declares personhood "at every stage of development." Daniel Woodard of North Dakota Right to Life and the North Dakota Life League asserted that "this bill should shut down [the last] clinic" in the state that offers abortion coverage.
Republicans in an Iowa House subcommittee approved a personhood measure, HF 173, which declares that a zygote and a fetus have all of the same legal rights as a "person."
Personhood legislation introduced in the Georgia Senate has already garnered the support of Tony Perkins, head of the Family Research Council, who called the measure "a reflection of a growing pro-life sentiment across the country." The personhood bill introduced in the Georgia House declares that "a fetus is a person for all purposes under the laws of this state from the moment of conception" and would classify miscarriages caused by "human involvement" as "pre-natal murder," a crime that would be punishable by death. Jen Phillips of Mother Jones writes, "Under Rep. Franklin’s bill, HB 1, women who miscarry could become felons if they cannot prove that there was ‘no human involvement whatsoever in the causation’ of their miscarriage."
The "Florida for Life Act," introduced by Republican state representative and ordained minister Charles Van Zant, declares that "all life comes from the Creator and begins at conception." The bill goes on to delcare that "the Supreme Court’s removal of moral and political questions from the political power of the people to determine, under color of constitutional adjudication, is a violation of the peoples’ right to self-government guaranteed under the Constitution of the United States." According to the Sarasota Herald Tribune, Van Zant’s personhood bill "contains no abortion exceptions for victims of rape and incest" and "would turn abortion doctors into felons for violating the measure’s strict provisions."
Legalized Murder of Abortion Providers
Last month, the South Dakota House tabled a bill that would have legalized the murder of doctors who perform abortions by classifying it as "justifiable homicide." Now the Nebraska Senate is weighing a bill that would amend the state’s self-defense code "to authorize protection of an unborn child." Under the amendment proposed by the fiercely anti-choice state Sen. Mark Christensen, a "third person or person to be protected includes an unborn child" which "means an individual member of the species Homo sapiens at any stage of development in utero."
State Sen. Brad Ashford, the chairman of Nebraska Senate’s Judiciary Committee, said "we could see firefights at clinics" if Christensen’s amendment is passed in the unicameral state legislature. David Baker of the Omaha Police department warned that the bill "could incite violence at abortion clinics." Even though proponents deny that it is the intention of their bill, the legal ambiguity would create a perilous and potentially deadly environment for abortion providers in the state.
Along with the personhood bill under consideration in Iowa, the state House plans to consider HF 7, a bill that expands the right to use deadly force to protect a third party. Essentially, by declaring that a zygote and a fetus have all of the same legal rights as a "person" while also broadening the legal protections regarding the reasonable use of deadly force, the bill opens the door for attacks on abortion providers. Criminal defense attorney Todd Miler told The Iowa Independent that since HF 7 "explicitly provides that people have a right to defend themselves or others at any place they are legally allowed to be," if someone attempted "to kill a physician or a clinic worker, and if they did so while believing they were protecting another person, which would be defined under House File 153 as a fetus, then, under this law, they would have the right to do that."