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By Dartunorro Clark
Republican-led states are charging ahead with a spate of restrictive anti-abortion bills designed to trigger a legal battle that lands at the doorstep of the Supreme Court, lawmakers and experts said.
Alabama, poised to pass the country’s toughest limits this week in what would amount to an outright ban on abortion, is just one of two dozen states that have proposed or passed measures to restrict abortion this legislative session, an onslaught abortion rights supporters say is both unprecedented and strategic.
With the new conservative majority cemented on the Supreme Court, many politicians and anti-abortion rights groups see an opportunity to provoke a case that could finally put a dagger through Roe v. Wade, the landmark 1973 decision that legalized abortion nationwide.
“It simply criminalizes abortion,” Alabama state Rep. Terri Collins, a Republican, told The Associated Press last month of the proposal she sponsored. “Hopefully, it takes it all the way to the Supreme Court to overturn (Roe v. Wade).”
Alabama state Sen. Clyde Chambliss, a Republican, vowed that the bill would pass and reportedly told constituents at a town hall last week that the bill “is a direct plan to challenge Roe v. Wade in the Supreme Court,” urging the crowd to “pray for that.”
Elizabeth Nash, the state policy analyst for the Guttmacher Institute, which supports abortion rights, said the extremity of the new proposals represents a tactical shift.
“What we’re seeing is unprecedented in the sense that we’ve never seen this many near-total abortion bans moving through state legislatures and getting enacted,” Nash said in a phone interview. “What we typically see is legislation that places further restrictions on abortion, makes it harder to get to the clinic, makes it harder to keep the clinic doors open. This is a real shift in the strategy and moving toward near-total and total abortion bans.”
More than 300 proposals to restrict abortion were introduced in states from January to March, according to the Guttmacher Institute. Georgia, Mississippi, Ohio and Kentucky passed bills this year that ban abortions after a fetal heartbeat is detected, which occurs around the sixth week of pregnancy — before most women are even aware they are pregnant, say abortion rights groups. None of these bills are in effect yet. (A federal judge suspended the Kentucky law after a lawsuit.)
“We’re seeing an uptick not just in the number of bans on abortion, but really the severity and the cruelty of these bans. That’s relatively new and actually even more terrifying for women and families,” Kristin Ford, the national communications director for NARAL Pro-Choice America, said.
The various state chapters of the American Civil Liberties Union, such as Ohio and Georgia, have already mounted legal challenges to the bills, along with groups like Planned Parenthood.
Anti-abortion groups and elected officials have been transparent about their desire to provoke a legal fight.
Anti-abortion protesters rally near a Planned Parenthood clinic in Philadelphia on May 10, 2019. The demonstration was spurred by the actions of a Democratic state lawmaker who recorded himself berating an anti-abortion demonstrator at length outside the clinic.Matt Rourke / AP
Jamieson Gordon, the communications director for Ohio Right to Life, which was instrumental in helping to pass the Ohio law, said that in the past, the makeup of the Supreme Court was not favorable for overturning Roe v. Wade. Now, she said, this could be the coda for legal abortion in America.
“You have to be strategic in looking at the Supreme Court … so we were looking at, legislation-wise, what’s the best move?” she said. “And so once Justices Gorsuch and Kavanaugh joined the Supreme Court and we had passed a lot of big pieces of legislation that we had been hoping to achieve, we saw the heartbeat bill as the next step from there.”
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Georgia state Sen. Jen Jordan, a Democrat, told NBC News that in the quest by conservative red states to get before the Supreme Court, the bills may “open up a Pandora’s box like we haven’t seen” because “each state is trying to out-crazy the other, because they all want to be the one to get in front of the Supreme Court.”
The Georgia bill, she said, signed into law by Republican Gov. Brian Kemp last week, essentially grants personhood to a fetus and, under certain circumstances, could criminalize women who have a miscarriage.
Jordan’s dissent against the bill on the Georgia Senate floor, in which she spoke publicly for the first time about her seven miscarriages and about hearing a heartbeat each time, went viral, including her warning that criminalizing such a painful moment will have a deleterious effect on women.
“That’s the problem here, is kind of the unintended or intended consequences of a law that really just kind of turns our whole system on its head and really just effectively makes women vessels for fertilized eggs,” she said. “Because at that point in time, I mean, once you become pregnant, all of your rights as a human being really become secondary to the fetus that you’re carrying.”
Michelle Disher, dressed as a Handmaid, protests Georgia’s anti-abortion “heartbeat” bill at the State Capitol in Atlanta on May 7, 2019.Elijah Nouvelage / Reuters
Clarke Forsythe, senior counsel for the anti-abortion rights group Americans United For Life, questioned whether some of the measures were a viable vehicle for the court to re-examine Roe v. Wade.
In a phone interview with NBC News, he said that Roe v. Wade was “an unjust and unconstitutional decision,” but that he does not believe the court would have the appetite to take up many of these bills.
He noted that “the court has already in the past rejected two cases, or refused to hear two cases” from Arkansas and North Dakota that involve first trimester bans. Also, this February, the Supreme Court voted 5-4 vote to block a Louisiana abortion law from taking effect. Chief Justice John Roberts voted with the court’s liberal judges.
“Secondly, the court has virtually absolute discretion as to which cases it wants to hear, which legal issues it wants to hear, whether it ever hears a legal issue,” Forsythe said. “The notion that a state can force the court to hear an issue is simply inaccurate.”
He added that it will be important to watch how the court decides on cases it now has in its pipeline, specifically a 2016 Alabama law criminalizing the dilation and evacuation (D&E) procedure, a common method of second-trimester abortions, which the state claims are “dismemberment abortions.” A federal appeals court ruled the law unconstitutional last year.
“If [the Supreme Court] is not interested in hearing a second-trimester prohibition, it’s probably not interested in hearing a first-trimester prohibition,” Forsythe said, referring to the “heartbeat” bills. “At least in the short term and without a sixth (conservative) justice.”
Nash, the policy expert at the Guttmacher Institute, said that it’s “conceivable that the court would be looking for a particular case and waiting for it to arrive on its doorstep.” Still, she said, abortion rights can be undermined without overturning Roe v. Wade.
“Already we see we’re living in a country where abortion access depends on where you live,” she said, adding, “The idea that abortion is accessible and available across the country is not the reality.”