The Coming Wave of Anti-Abortion Law
Paige Winfield Cunningham, Politico
he big Republican gains in the November elections strengthened and enlarged the anti-abortion forces in the House and the Senate. But it’s the GOP victories in the statehouses and governor’s mansions that are priming the ground for another round of legal restrictions on abortion.
Arkansas, for instance, already has strict anti-abortion laws. But with a Republican governor succeeding a Democrat who had vetoed two measures that would have banned most abortions beyond a certain stage of pregnancy, lawmakers plan to seek more restrictions — such as barring doctors from administering abortion drugs through telemedicine. Republican gains in the West Virginia Legislature will redouble pressure on Democratic Gov. Earl Ray Tomblin to accept a ban on most abortions after 20 weeks, which he has previously deemed unconstitutional. And Tennessee voters approved a ballot initiative that removes a 15-year barrier to legislation limiting abortion legislation in that deeply conservative state.
Abortion rights advocates have had setbacks in the states for several years, with a surge of legislative activity since 2011. Women seeking abortions may face mandatory waiting periods or ultrasound requirements. Clinics may face stricter building codes or hospital admitting privilege rules they can’t satisfy. Dozens of clinics have shut down in multiple states. Texas, for instance, has fewer than 10 abortion clinics now. A year ago, it had 40.
Republicans now hold two-thirds of the state legislative bodies, after winning control of 11 more chambers. They completely control the legislature in more than half the states, adding Nevada, New Hampshire and West Virginia to that list earlier this month. And they gained two more governor’s seats, so they will hold 31 next year.
Republican leaders who will control the U.S. Senate come January say they want to take up abortion this year, perhaps on a House-passed bill that would limit the procedure after 20 weeks. But the reality is that Senate Republicans will still fall a few votes shy of the 60 needed for controversial major legislation. It’s the states where Republicans can enact more abortion limits.
“We came out of Nov. 4th with a lot of momentum,” said Chuck Donovan, president of the research and education arm of Susan B. Anthony List, which is dedicated to electing candidates who oppose abortion. He expects the number of anti-abortion measures proposed in the states to reflect that. “I think we’re about to get another uptick.”
Thirteen states have passed bans on most abortions after 20 weeks of pregnancy — so-called fetal pain bills — and a couple have enacted earlier limits tied to when a fetal heartbeat is first detected, which can be six or seven weeks into a pregnancy. Several of these state laws are being contested in court, and the arguments may eventually end up in the Supreme Court. But that hasn’t deterred more states from eyeing such legislation; in Ohio, a House panel approved a fetal heartbeat bill just a few days ago.
Planned Parenthood President Cecile Richards predicts that 2015 will bring more attempts to enact restrictive state laws. She said she expects “state legislative attacks on women’s health, even though the vast majority of the public wants elected officials to protect and expand access to safe and legal abortion, birth control and preventive health care.”
Anti-abortion legislation is especially likely to come up in two of the four legislatures that meet every other year: Texas, which passed sweeping clinic regulations in 2013, and North Dakota, which recently saw its medication abortion restrictions upheld by the state Supreme Court. (Its heartbeat bill is being contested in court.)
Activists say they’ll push on several fronts, seeking more restrictions in states that have already enacted laws, as well as initiating legislation in states where the GOP has now gained ground.
“In some states where we’ve had success in the past we’ve gotten stronger, and in some states where we weren’t able to pass anything we were able to improve our vote count,” said Mary Spaulding Balch, state legislative director of the National Right to Life Committee.
One state in the spotlight: Tennessee. Voters in November approved a ballot initiative that says the state’s constitution does not protect abortion rights. That cleared the way for state lawmakers to pass new abortion restrictions for the first time in nearly 15 years. Republican state Rep. Rick Womick already has filed bills requiring mandatory ultrasounds and a three-day waiting period for an abortion.
Some activists want Tennessee to focus on restrictions that a court struck down in 2000 but could now be permissible. Those include parental consent for minors, a mandatory 24-hour waiting period and stricter clinic regulations. But other measures may come up, too.
“The lawmakers are very strongly pro-life themselves — they are probably going to want to go further than Tennessee Right to Life would want to go at this juncture,” said its president, Brian Harris. “We feel in good faith we need to follow through on specifically those protective policies we debated and discussed.”
Another eight states — Ohio, Arizona, Kansas, Nebraska, Oklahoma, Louisiana, Mississippi and Wisconsin — are considered top targets by abortion opponents. Arkansas has several laws on the books but, in addition to the telemedicine bill, may also pursue legislation that would keep Medicaid dollars from any organization that provides abortions.
Still, activists acknowledge that GOP control of the legislative branch doesn’t necessarily equate with anti-abortion majority, particularly if there’s a gubernatorial veto.
Both the Nevada Assembly and Senate flipped Republican earlier this month, for example, but Republican Gov. Brian Sandoval supports keeping abortion legal, making it less likely that abortion restrictions will get through. Activists in the state are, however, eyeing a bill creating a religious exemption for contraception and abortion insurance coverage in the health law. New Hampshire’s two chambers also flipped to the GOP, but Democratic Gov. Maggie Hassan definitely backs abortion rights, and a significant change to state law is not likely.