States add more anti-abortion laws

by on April 28, 2010  •  In Reproductive rights

When I worked at the Reproductive Freedom Project at the ACLU, the end of spring each year was a special time.  It meant that the legislatures in many of the smaller states were ending their annual legislative session, which meant no more crazy restrictive new laws, at least for another year. That moment can't come fast enough this spring, since 2010 has seen a big jump in the number and the restrictive intensity of state laws limiting the rights of women to reproductive choice.

Nebraska has just enacted two new statutes in this vein; a new Arizona law prohibits coverage of abortions in that state's insurance exchange, and Tennessee has a similar bill awaiting the governor's signature; and now Oklahoma has raised the stakes with a law mandating that women must see a fetal ultrasound and listen to a detailed description of the fetus before going forward, as well as a law granting immunity to doctors who do not inform pregnant women of fetal birth defects. [The Center for Reproductive Rights filed suit in Oklahoma yesterday seeking a TRO to stop enforcement.] Are these laws a sign of new power for the anti-choice movement or is 2010 an outlier year, perhaps fueled by a conservative energy spike coming off health reform in general and the Stupak amendment in particular?

Interesting analysis from Politico:

…“On the one hand, [the new laws are] part of an onslaught of restrictions that we see constantly,” says Nancy Northrup, President of the Center for Reproductive Rights… “But, that being said, these are both going farther that what we’ve seen before.” This year alone, the Center has filed lawsuits against six abortion-related laws—two in Oklahoma, two in Alaska, and others in North Dakota and Arizona—a caseload that Northrup describes as “higher than we’ve seen since the late 1990s. It’s a total uptick.” They’re currently tracking about 500 state-level bills that would curtail abortion rights…

Fourteen states [other than Oklahoma] do require the provision of an ultrasound prior to abortion, but Oklahoma goes further by requiring both the description of the fetus and that the ultrasound monitor be in sight. Oklahoma’s more restrictive law passed despite objections from Gov. Brad Henry (D), who had previously vetoed the bill.

The Nebraska law bans abortion after 20 weeks gestation on the basis that the fetus could feel pain. When it takes effect in October, the new regulation will likely be challenged as unconstitutional, largely because it bans pre-viability abortions. Numerous Supreme Court cases, including Roe v. Wade, identify viability as the point at which states can ban abortion, with exceptions for the life or health of the mother. Prior to viability, however, states can regulate, but not ban, the procedure….

These anti-abortion victories are a marked shift from just two years ago, when all three of the 2008 abortion-related voter initiatives failed. One in Colorado—arguably the most far-reaching of the three, as it would have declared personhood as beginning at conception—lost by a 46-point margin. Moreover, Nebraska and Oklahoma’s new laws are significantly more restrictive than the abortion restrictions that usually pass through state legislatures, measures that require parental notification for minors or a daylong waiting period prior to abortion.

Northrup attributes some of her opponents’ recent success to the health care reform debate. “The atmosphere around health care reform created a real aggressiveness that energized the anti-choice movement,” she says….

Mary Spaulding Balch, who directs the National Right to Life Committee’s state legislation, says the opt-out bills have contributed to the volume of anti-abortion legislation being “stronger than in pervious years.” But, unlike Northrup, Spaulding Balch cautions against reading the Nebraska and Oklahoma victories as health care reform fallout. She sees the Oklahoma law as a “natural progression” that grew out of other states’ less stringent ultrasound requirements.

And the Nebraska law, she says, was drafted with a very specific goal: to regulate LeRoy Carhart, an Omaha-based abortion provider who is one of the country’s few late-term specialists. “When George Tiller was killed, LeRoy Carhart had national attention,” says Spaulding Balch. “That alerted Speaker Mike Flood to the problem in Nebraska and he worked to address that.”…


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