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A Guide to Laws, Bans & the Abortion Debate

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A Guide to Laws, Bans & the Abortion Debate

Photo: From top left: Bettmann Archive, Viviane Mos/Corbis, Mark Meyer/LIFE; Bettmann Archive. Barbara Freeman. Julie Bennett/Getty Images

The political debate has been hot and cold for 48 years, since the U.S. Supreme Court allowed abortion to be legalized (for most of the time). At present it’s red-hot, thanks to a conservative majority on the Supreme Court that has positioned itself to partially or completely abandon reproductive rights, and a new tide of abortion restrictions being enacted by Republican-controlled states in anticipation of, and in some cases in order to speed along, the retrograde trend in the Court. The two current trends converged recently in an order of five of six conservative justices rejecting, on questionable procedural grounds, an emergency petition to stop the Texas ban on abortions within six weeks of pregnancy. The Supreme Court session next month will see a stronger and more definitive challenge to abortion rights. It looks like the issue of abortion will likely be front-burner for both sides in the 2022 midterm elections, and then the 2024 presidential race.

If you haven’t been paying much attention to abortion policy, now would be a good time to tune in. Here are the key terms and fault lines you’ll need to know to follow the debate.

The 1973 Supreme Court decision Roe v. Wade (along with the lesser-known companion case Doe v. Bolton) codified nationally a woman’s right to have an abortion under certain circumstances. Harry Blackmun, a Nixon appointee, wrote the majority opinion with six other justices. It found that abortion rights are protected by the Constitution. It stated that women were entitled to an abortion in the first trimester (up to 14 weeks). In the second trimester (14–27 weeks), the government could impose medical regulations, strictly to protect the woman’s health. Then in the third trimester, abortions could be banned outright, reflecting the state’s interest in protecting the “potential life” of the fetus — but exceptions for physician-defined threats to the life or health of the woman had to be allowed.

This decision lifted state bans on abortion in 33 states and liberalized abortion laws in 13 more. Both pro-choice as well as anti-abortion groups commemorate it annually on January 22. The March for Life in D.C., which has been held every year since 1974, is the most notable example.

Fetal viability means that the human fetus is capable of living outside its mother’s womb. Many states and courts have adopted the medical rule that viability is at its earliest during pregnancy, at 24 weeks. The Supreme Court precedents on abortion clearly state that women have a right to an abortion prior the viability of their baby, but with limited restrictions.

Fewer than one percent of abortions take place after fetal viability. The anti-abortion movement seeks to shift the focus back to earlier stages.

Planned Parenthood (v. Casey) was the 1992 Supreme Court precedent. It was a 5-4 decision which both confirmed and modified Roe V. Wade. Authored jointly by three Republican-appointed justices (Anthony Kennedy, Sandra Day O’Connor, and David Souter), with two other Republican-appointed justices concurring (Harry Blackmun and John Paul Stevens), Casey scrapped the trimester system, replacing it with a simple right to pre-viability abortions. Casey allowed states to regulate pre-viability abortions, provided that they did not violate the Constitution. “unduly burden” a woman’s right to an abortion. (Roe had banned all government interference in the initial trimester.

Advocates for reproductive rights feared the subjective “undue burden”The standard would open up a lot of opportunities for abortion restrictions. However, many were relieved to learn that the Court hadn’t, as many had hoped, reversed Roe. The Court’s decision was seen as a bitter defeat by anti-abortion supporters, but it also opened up new avenues for restrictions on abortion during pregnancy.

Many, if not all, anti-abortion advocates believe that the fetus, from the moment it is created (or fertilized) to the moment of conception, is morally, metaphysically, and physically a person. “person”full citizenship rights should be protected constitutionally, just as abortion rights are today. In other words, while the anti-abortion movement’s immediate goal is reversal of Roe v. Wade and a state-controlled landscape of abortion laws, it generally favors a national law (or constitutional amendment) entrenching fetal rights. National Republican platforms have endorsed a Human Life Amendment to Constitution since 1980.

A state-based “personhood movement”Aims to include fetal rights into state constitutions. This led to failed ballot initiatives in North Dakota, Mississippi and Colorado and an unsuccessful (albeit vaguer) initiative for Alabama. The “personhood movement”It tends to be very extreme on issues relating to fetal and embryonic health, and often opposes IV-fertilization procedures that result in the destruction of unutilized embryos. Importantly, the “sanctuary city for the unborn”Texas’s abortion ban movement is currently roiling courts and politicians. Many sought to have local ordinances prohibiting all abortions and morning-after polls.

One type of state law (and congressional proposal) has aimed to chip away at abortion rights by shifting the dividing line between legal and potentially illegal abortions from fetal viability to some earlier point in pregnancy — most popularly a scientifically unsubstantiated point at which a fetus is alleged to be capable of experiencing pain (typically 20 or 22 weeks into pregnancy). These laws have been enacted in 21 states, but none have taken effect.

The current most popular model for state abortion bans involves a more ambiguous proposition: prohibiting abortion when a fetal pulse can be detected. (Though cardiac activity — or pulsing cells — can be detected via ultrasound as early as six weeks, this term is misleading because embryos don’t have hearts.) These are the most common. “heartbeat bills”Ban abortion after six weeks of gestation, which is when most women are not aware they are pregnant. These laws, like the fetal-pain prohibitions, are meant to provide agitprop to anti-abortion causes and offer a suggestion for a new standard for future restrictions on abortion. Nine states have so far enacted these laws. “heartbeat”Texas had a Republican legislature that created a private-citizen enforcement system that allowed the Fifth Circuit Court of Appeals to and five Supreme Court justices (then five) to decide that they did not have any grounds to interfere to uphold precedents.

Within the anti-abortion movement, there is a perpetually raging debate over whether it’s immoral to accept exceptions to proposed abortion bans for pregnancies resulting from rape and incest. These exceptions are very popular and Republican politicians, including Donald Trump and Ronald Reagan, tend to support them. There’s so much talk about these exceptions in conservative circles that those who embrace them have been able to cultivate a “moderate”Image despite support for bans on 98.5 percent abortions that don’t involve rape or immoral.

The two state laws in the news lately – the Texas 6-week ban that the Supreme Court has at least temporarily allowed to take effect, and the Mississippi 15-week ban the Court will consider in its next term – have no rape or incest exceptions.

Largely frustrated in their efforts to directly ban or restrict abortions after Casey, Republican-controlled states increasingly focused their efforts on making abortion services unavailable. TRAP (Targeted Regulation of Abortion Providers), was designed to create reasonable-sounding regulations that were often justified as being for the benefit of women. These requirements had the effect of closing down abortion clinics. The Guttmacher Institute explains this:

Most TRAP laws apply a state’s standards for ambulatory surgical centers (ASCs) to abortion clinics, even though surgical centers tend to provide riskier, more invasive procedures and use higher levels of sedation. In some cases, TRAP laws also extend to physicians’ offices where abortions are performed and even to sites where only medication abortion is administered. TRAP regulations often include minimum measurements for room size and corridor width — requirements that may necessitate relocation or costly changes to a clinic’s physical layout and structure. Although complications that may require hospital admissions are not common, certain regulations mandate that abortion providers have admitting privileges at the local hospital. TRAP standards are designed to make it difficult for providers to comply with. These laws are not intended to improve patient care. Instead, they endanger patients by reducing access to abortion facilities.

In 2016, with Justice Kennedy again supplying the key vote (his was the surprise vote to affirm Roe in Casey), the Supreme Court put up a stop sign to TRAP laws in a Texas case by challenging the states’ right to mischaracterize restrictions that were transparently intended to reduce access to abortion services (a textbook case of “undue burden”. Brett Kavanaugh replaced Justice Kennedy. In 2020, the Court invalidated a Louisiana law almost identical to the one that Louisiana had enacted. Chief Justice John Roberts joined the liberal minority in a 5-4 decision. This was clearly because he believed it would be disruptive for Louisiana to abruptly reverse its course.

The new Texas abortion law’s vigilante enforcement program (private citizens have a civil right to action and bonuses for successful litigation against providers who violate the 6-week ban on abortion) is reminiscent of TRAP laws. It is aimed at inciting and imposing prohibitive cost on providers and will be copied by other states once SCOTUS has given it a temporary green light. But the real excitement in anti-abortion circles has shifted from indirect to direct attacks on legalized abortion, particularly in view of the Court’s upcoming review of a Mississippi law explicitly challenging the traditional protection of pre-viability abortions.

This term refers to abortions that involve a technique (intact dilution and extraction), in which the fetus is temporarily removed from the woman prior to the termination of the pregnancy. After destroying a state “partial-birth abortion ban”Because it didn’t provide an exception to protect the health of women, the Supreme Court in surprise 5-4 decision Gonzalez v. Carhart in 2007 upheld a similar federal ban. The Court ruled that the ban was not an exception to the rule. “undue burden,”Alternative abortion methods are still available. A congressional report cited them. “finding”This procedure was never considered medically necessary. (This contradicted the medical community’s consensus, and did away with the traditional deference to the judgement of a woman’s physician). Justice Kennedy wrote this opinion to reinforce his position as an unpredictable SCOTUS swing vote regarding abortion issues.

The anti-abortion movement has long sought to undermine support for abortion rights generally by focusing on and demonizing late-term abortions — though, as noted above, less than one percent of abortions occur after fetal viability, and these cases typically involve threats to the health of the woman or severe fetal abnormalities.

New York, which sought to codify abortion rights after Roe v. Wade was reversed, passed a 2019 law that allowed late-term abortions in strict medical circumstances. This is the latest incitement for an attack against late-term abortions. Trump and other anti-abortion activists began to refer to such abortions in a way that was “a form of torture”. “infanticide,”Making outrageously inaccurate claims about what the procedure involves.

This congressional appropriations rider, which has been in effect since 1980, prohibits the use of federal funding for abortion services (which means abortions are not covered by Medicaid, the federal-and-state-funded health-insurance program for low-income Americans). It received substantial Democratic support from anti-abortion Democrats as well as those who considered a funding ban a reasonable compromise despite the severe consequences for women who couldn’t afford it.

Democrats have been calling for the removal of the Hyde Amendment to be very popular. It was first mentioned in the Democratic platform in 2016, making it a key component of the platform. This led to Joe Biden becoming the 2020 presidential candidate. As president, he proposed an end to Hyde in his Fiscal Year 2022 budget resolution. This has been passed on a party line vote in both houses of Congress and will likely be implemented through a budget reconciliation bill, if Democrats are unified. Republicans, who almost all support Hyde’s policies, justifiably demand a Planned Parenthood funding cutoff as an extension of the law.

Planned Parenthood Federation (a nonprofit organization) performs more than any single provider in terms of abortion procedures (332,000. It provides a wide range of medical services to its 600 clinics. They offer everything from screenings for cancer to contraceptives, STI treatment and education to sex education. Planned Parenthood, which provides reproductive-health services in many medically underserved regions, is the only option for those who are poorer.

The anti-abortion movement tried unsuccessfully to eliminate Planned Parenthood from both the federal and state levels. It argued that providing any government funding only frees up money for abortion services (the Hyde Amendment bans the use Medicaid dollars for abortion). A sketchy 2015 “sting”Operation producing video purporting that it shows Planned Parenthood officials discussing the sale of fetal tissue. Or as the anti-abortion activists called, “baby parts”) as a profit center helped inflame a fresh round of Republican attacks on Planned Parenthood in the last few years.

NARAL (National Abortion Rights Action League), Pro-Choice America, is the nation’s most important pro-choice organization. It was previously known as the National Association for the Repeal of Abortion Laws. Other notable pro-choice groups include EMILY’s List, a political organization that exclusively funds campaigns waged by pro-choice Democratic women; the research-oriented Guttmacher Institute; the Center for Reproductive Rights, a legal organization that handles litigation in abortion and contraception cases; and the National Network of Abortion Funds, which helps pay for abortions for women who cannot otherwise afford them.

There are many organizations involved in the movement to ban abortion. The National Right to Life Committee is the oldest and broadest-based group, which often promotes pragmatic strategies for gradually eroding abortion rights and focusing public attention on controversial practices like rare late-term abortions and questionable-sounding motives for abortion. A more militant organization, the Susan B. Anthony List, views itself as a counterpart to EMILY’s List. Several religiously oriented organizations, such as the U.S. Conference of Catholic Bishops (which helped to create the NRLC), Southern Baptist Convention, Church of Jesus Christ of Latter-Day Saints and the Church of Jesus Christ of Latter-Day Saints have been actively involved in the fight against legalized abortion. Personhood USA is an organization dedicated to the radical cause establishing fetal personhood within the Constitution and laws.

The abortion debate has been plagued by arguments over language. The term most used by those who want to preserve a fundamental right for abortion is “pro-choice.”Recently, however, there has been a greater need to be less defensive regarding abortion. “choice,”To frame abortion as a normal service of health, has led to a greater use of simpler terms such as “reproductive rights”Or “abortion rights.”(A push to avoid calling the opposite side). “pro-life,”These terms should be used “anti-abortion”Or “anti-choice” instead.) An example of the impact of this more positive point of view was the elimination in 2012 of the Democratic national platform pledge to make abortion (in Bill Clinton’s words) “safe, legal and rare.” “Pro-life”It is the preferred choice of activists who oppose abortion.

The legal battle over Texas’ new law is unpredictable and important. This is especially true if Texas prevails and abortion providers there essentially implement the 6-week ban in fear of being sued. In such a case, or if lawsuits start and the Supreme Court continues to refuse to intervene in, Roev. Wade will have been reversed in Texas, and any other state with similar legislation.

But even if the Texas law is struck down based on the existing precedents, the Supreme Court could reverse or significantly modify them in the Mississippi case (Dobbs v. Jackson Women’s Health Organization) just down the road. Oral arguments in that case will be held this autumn, with a decision – very possibly a landmark decision changing abortion law as we have known it for 48 years – likely in the spring.

This piece has been updated throughout.

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