State Lawmakers Aren’t Letting the Coronavirus Stop Their Crusade Against Abortion Rights

Special Report: COVID-19

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Commentary My Body. My Rules.

State Lawmakers Aren’t Letting the Coronavirus Stop Their Crusade Against Abortion Rights

Imani Gandy

The president and governors across the country are declaring states of emergency as the coronavirus spreads. And still, state-level Republicans are jamming through anti-abortion bills.

For continuing coverage of how COVID-19 is affecting reproductive health, check out our Special Report.  

Abortion rights advocates watched in horror last week as the Trump administration threatened to stymie negotiations over coronavirus response legislation by demanding anti-abortion language be inserted into the bill.

House Speaker Nancy Pelosi’s (D-CA) negotiations with Trump’s treasury secretary hit a roadblock when the White House apparently insisted that anti-abortion language be included in the coronavirus relief package. The Trump administration wanted to include Hyde Amendment language, which prohibits public funding for abortion, in the bill.

It’s ghoulish but unsurprising that the Trump administration would hold up lifesaving coronavirus legislation in order to ban federal funds from being used to pay for abortion care, especially since federal funds are already barred from being used for abortion. (They shouldn’t be, as I have written before, but that is a discussion for another time.)

The anti-abortion rider has already been attached to the 2020 appropriations bill. It is in effect right now. There is no reason for the Trump administration to have made a stink about it except that it’s an election year and Trump wants his base to understand that even in the face of a pandemic, he’s going to make sure to stick it to pregnant people.

But Trump isn’t the only one. In several Republican-controlled state legislatures, lawmakers are seemingly scoffing in the face of a global pandemic as they rush to ram through anti-choice legislation.

Tennessee might be the worst of them all: Lawmakers there placed a travesty of an abortion bill on the Tennessee House public health subcommittee’s calendar for March 17. (For context, that’s the day that the shelter-in-place order went into effect in Oakland, California, where I live.) HB 2263 began as a bill that would simply delay trial from 30 to 60 days for a physician accused of performing a “partial birth” abortion so the state medical board can determine whether the procedure was necessary to save the life of the pregnant person.

After extensive amendments, HB 2263 became a gnarly 33-page sweeping abortion bill that contains a veritable Russian nesting doll of abortion bans. It purports to ban abortion at six weeks, eight weeks, ten weeks, 12 weeks, 15 weeks, 18 weeks, 20 weeks, 21 weeks, 22, weeks, and 23 weeks. The bill explains that if a court determines any ban to be unconstitutional, then the next ban goes into effect even though pre-viability abortion bans are unconstitutional—at least until the Supreme Court rules differently—and the medical consensus is that a fetus is viable at around 24 weeks.

HB 2263 includes a forced ultrasound provision with a speech-and-display requirement that forces the physician performing the ultrasound to place the ultrasound images in the patient’s view, read a state-mandated script about the images, and play fetal heart tones if they are audible.

These sorts of speech-and-display requirements are unconstitutional, or at least they should be. Physicians have First Amendment rights generally—or at least they should—but they don’t in the Sixth Circuit, unfortunately, which is where Tennessee sits. In December, the Supreme Court declined to take a case out of Kentucky challenging that state’s speech-and-display requirement, leaving in place the Sixth Circuit ruling upholding the requirement. And since Tennessee sits in the Sixth Circuit, doctors there, like those in Kentucky (and Michigan and Ohio, if those states ever decide to violate the First Amendment rights of doctors), can be forced to deliver state anti-choice ideology while providing health care to their patients.

In New Jersey on Monday, an anti-choice Republican introduced a bill that would ban dilation and evacuation (D and E) abortions. Monday was the day that my local government told me I couldn’t leave the house anymore except under very limited circumstances. One would think that a D and E ban could have waited until after this pandemic is under control, especially since D and E bans are routinely struck down as unconstitutional pre-viability abortion bans.

States that are far worse for abortion access, like Alabama, Arkansas, and Louisiana, have passed D and E bans only to watch a court smack them down. So why are anti-choice legislators in New Jersey, which doesn’t typically come to mind when you think of states that are terrible for abortion rights, suddenly jumping on the D and E ban train and attempting to prohibit the most commonly used method of terminating a pregnancy in the second trimester? Especially when New Jersey is a hop, skip, and a jump from New York, which is practically on fire.

Beats me. Ask New Jersey Rep. Ronald Dancer (R-District 12), who introduced the bill.

In Utah, the governor declared a state of emergency on March 6 because of the coronavirus, but the Republican-held legislature has kept chugging along, trying to enact a so-called trigger ban that will kick in if conservatives on the Supreme Court ever overturn Roe v. Wade. A flurry of activity on March 12—that’s six days after Utah’s governor declared a state of emergency because of the coronavirus—resulted in the trigger ban legislation passing both legislative chambers.

Good to know where Utah’s priorities stand.

And in Wyoming, anti-choice lawmakers are still laboring under the fever dream that there is a scourge of abortion providers delivering babies and then murdering them. Hey guys? Do you know what the scourge is? COVID-19, not your fantasy that baby-murdering doctors are wreaking havoc! A special thanks to President Donald Trump, who added fuel to the “abortion doctors are murdering babies” fire last year when, in response to Sen. Ben Sasse’s (R-NE) “Born-Alive Abortion Survivors Protection Act,” he tweeted that “Senate Democrats just voted against legislation to prevent the killing of newborn infant children. The Democrat position on abortion is now so extreme that they don’t mind executing babies after birth.”

Except here’s the thing: Executing a baby after birth is already illegal. It’s called infanticide. Moreover, there’s already a federal bill protecting so-called born alive survivors. Congress passed the “Born-Alive Infants Protection Act of 2002” almost 20 years ago when George W. Bush was president.

So is there a need for states like Wyoming to pass their own “born alive” legislation? No. Is there a need for Wyoming to pass this bill in the middle of a pandemic? An even more emphatic no.

“Born alive” bills are nothing more than a publicity stunt designed to demonize abortion providers and rally the Republicans’ Christian evangelical base. Because at the end of the day, only Republicans oppose infanticide—or so Republicans want their base to believe. Democrats are liable to take your baby—after they take your guns—and put it into a pot to make a delicious left-wing stew. (Stewed babies—don’t knock it ‘til you’ve tried it.) And the fact that Republicans in Wyoming are rushing this bill through in the middle of a global pandemic demonstrates how desperate they are to keep their base thinking that Democrats are dining on baby soup.

I have a proposal: How about Democrats promise to stop eating stewed babies if Republicans stop trying to crawl into everyone’s uterus. And then Democrats and Republicans alike can focus on figuring out how to contain this coronavirus pandemic.

Priorities, people.