News Abortion

Alabama Lawmakers Propose Near-Total Abortion Ban, Other Severe Restrictions

Emily Crockett

The new bills would ban abortion as early as six weeks, make it extremely difficult for minors to obtain abortions, make all women wait longer to get an abortion, and force women carrying fetuses with fatal anomalies to hear about perinatal hospice options that may not even exist in the state.

Alabama legislators held public hearings Wednesday on four anti-choice bills, including one that would ban abortion as early as six weeks. The other bills would make it extremely difficult for minors to obtain abortions, make all women wait longer to get an abortion, and force women carrying fetuses with fatal anomalies to hear about perinatal hospice options that may not even exist in Alabama.

The “Fetal Heartbeat Act” would make it a felony for a physician to perform an abortion without first determining whether the fetus has a heartbeat, or to perform an abortion after a heartbeat is detected. There are exceptions for the life or health of the pregnant person, but not mental health, rape, or incest exceptions. Because a fetal heartbeat can be detected as early as six weeks, and because many women do not know they are pregnant that soon, this would amount to a near-total ban on abortion.

“It’s clearly unconstitutional,” Susan Watson, executive director of the American Civil Liberties Union (ACLU) Alabama, told Rewire. Roe v. Wade prohibits bans on abortion before viability, which is considered today to be around 24 weeks. Only North Dakota has enacted a ban as early as Alabama is proposing, and that ban is not in effect while legal challenges proceed. New fetal heartbeat bills have also been introduced this year in Ohio, Kentucky, and Kansas.

The ACLU is already in court fighting new laws that threatened to close three of the state’s five clinics. By introducing an unconstitutional abortion ban, Watson said, “legislators are yet again exposing the state to long and costly litigation.”

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Indeed, the bill was intended by its original author to be a direct court challenge to Roe v. Wade. Alabama Pro-Life Coalition Executive Director Eric Johnston, who drafted all four of the anti-choice bills, told the Montgomery Advertiser that the bill’s intent is to seek to change the definition of “viability” from the time the fetus can survive outside the womb, to the time when a heartbeat is detected. “The ultimate purpose is to get it tested in court,” Johnston said.

Another extreme bill would require a minor seeking an abortion to provide a certified birth certificate and a notarized consent form signed by her parents—who must also provide identification—in the presence of the abortion provider. The state already requires minors to get parental consent or an order from a judge before getting an abortion. If a minor wishes to use the judicial bypass process (some teens may need to avoid telling their parents about an abortion if a parent is abusive or the teen does not have a relationship with them), she must provide evidence of her maturity and understanding of abortion. But she cannot use the fact that she navigated the legal system as evidence of maturity. To get judicial bypass, she also must explain why she did not or could not tell her parents, and she must show that she has been counseled by a “qualified person” on alternatives to abortion.

“This bill is particularly troubling,” said Watson. “Judicial bypass is already a cumbersome procedure here in Alabama, and this is just making it nigh unto impossible.” And requiring a certified birth certificate, Watson said, could force the pregnant minor to wait at least another week if she only has a hospital copy.

“These types of restrictions will be more burdensome on poorer women and immigrant women, simply because their life circumstances may make it difficult to access requisite documents and identification, and be able to be in the clinic to get sign the consent form and then get it notarized,” Elizabeth Nash, state issues manager for the Guttmacher Institute, told Rewire over email.

Moreover, the bill eliminates requirements that the minor’s identity will remain confidential. “We know that minors hold confidential health care very dearly and without such protections they are less likely to see medical treatment,” Nash said.

The bill also allows the state to appoint a lawyer for the fetus as well as the minor, which Watson called “unusual.”

Also alarming pro-choice advocates is a bill that would prohibit abortions in cases when a fetus has fatal anomalies unless a woman is first informed of the option to use perinatal hospice services as an alternative to abortion. Perinatal hospice provides “supportive care” for women who choose to continue a pregnancy with fatal anomalies rather than terminate it. However, Brooke Anderson, a spokesperson at the ACLU of Alabama, told Rewire that she found no evidence of perinatal hospice services offered anywhere in Alabama, and that the bill’s sponsor, Kurt Wallace (R-Maplesville), admitted as much during the bill’s public hearing.

“Punishing women who are already in a very difficult situation with a complicated pregnancy by forcing them to hear about this hospice option, and implying that they should carry to term when a baby is stillborn or will die right at birth, is just unconscionable,” Nora Spencer, vice president of external affairs at Planned Parenthood of the Southeast, told Rewire.

The hospice bill also requires this “informed consent” to take place 48 hours before a procedure.

Alabama’s current law requires “informed consent” materials to be provided to women seeking an abortion 24 hours in advance of the procedure, but another bill would extend this period to 48 hours for all women.

“Forcing a woman to wait even longer to receive medical care does nothing to protect her health,” Spencer said.

The introduction of these four extreme bills came as a surprise to some observers. Mia Raven, a local pro-choice activist, said she was “blindsided” by the new bills after expecting that the legislature would only deal with the health-care conscience bill passed by the house last month.

“We are under siege,” she said. “Alabama has been taken hostage by the GOP, period.”

Commentary Human Rights

When It Comes to Zika and Abortion, Disabled People Are Too Often Used as a Rhetorical Device

s.e. smith

Anti-choicers shame parents facing a prenatal diagnosis and considering abortion, even though they don't back up their advocacy up with support. The pro-choice movement, on the other hand, often finds itself caught between defending abortion as an absolute personal right and suggesting that some lived potentials are worth more than others.

There’s only one reason anyone should ever get an abortion: Because that person is pregnant and does not want to be. As soon as anyone—whether they are pro- or anti-choice—starts bringing up qualifiers, exceptions, and scary monsters under the bed, things get problematic. They establish the seeds of a good abortion/bad abortion dichotomy, in which some abortions are deemed “worthier” than others.

And with the Zika virus reaching the United States and the stakes getting more tangible for many Americans, that arbitrary designation is on a lot of minds—especially where the possibility of developmentally impaired fetuses is concerned. As a result, people with disabilities are more often being used as a rhetorical device for or against abortion rights rather than viewed as actualized human beings.

Here’s what we know about Zika and pregnancy: The virus has been linked to microcephaly, hearing loss, impaired growth, vision problems, and some anomalies of brain development when a fetus is exposed during pregnancy, according to the Centers for Disease Control and Prevention. Sometimes these anomalies are fatal, and patients miscarry their pregnancies. Sometimes they are not. Being infected with Zika is not a guarantee that a fetus will develop developmental impairments.

We need to know much, much more about Zika and pregnancy. At this stage, commonsense precautions when necessary like sleeping under a mosquito net, using insect repellant, and having protected sex to prevent Zika infection in pregnancy are reasonable, given the established link between Zika and developmental anomalies. But the panicked tenor of the conversation about Zika and pregnancy has become troubling.

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In Latin America, where Zika has rampantly spread in the last few years, extremely tough abortion restrictions often deprive patients of reproductive autonomy, to the point where many face the possibility of criminal charges for seeking abortion. Currently, requests for abortions are spiking. Some patients have turned to services like Women on Web, which provides assistance with accessing medical abortion services in nations where they are difficult or impossible to find.

For pro-choice advocates in the United States, the situation in Latin America is further evidence of the need to protect abortion access in our own country. Many have specifically using Zika to advocate against 20-week limits on abortion—which are already unconstitutional, and should be condemned as such. Less than 2 percent of abortions take place after 20 weeks, according to the Guttmacher Institute. The pro-choice community is often quick to defend these abortions, arguing that the vast majority take place in cases where the life of the patient is threatened, the fetus has anomalies incompatible with life, or the fetus has severe developmental impairments. Microcephaly, though rare, is an example of an impairment that isn’t diagnosable until late in the second trimester or early in the third, so when patients opt for termination, they run smack up against 20-week bans.

Thanks to the high profile of Zika in the news, fetal anomalies are becoming a talking point on both sides of the abortion divide: Hence the dire headlines sensationalizing the idea that politicians want to force patients to give birth to disabled children. The implication of leaning on these emotional angles, rather than ones based on the law or on human rights, is that Zika causes disabilities, and no one would want to have a disabled child. Some of this rhetoric is likely entirely subconscious, but it reflects internalized attitudes about disabled people, and it’s a dogwhistle to many in the disability community.

Anti-choicers, meanwhile, are leveraging that argument in the other direction, suggesting that patients with Zika will want to kill their precious babies because they aren’t perfect, and that therefore it’s necessary to clamp down on abortion restrictions to protect the “unborn.” Last weekend, for instance, failed presidential candidate Sen. Marco Rubio (R-FL) announced that he doesn’t support access to abortion for pregnant patients with the Zika virus who might, as a consequence, run the risk of having babies with microcephaly. Hardline anti-choicers, unsurprisingly, applauded him for taking a stand to protect life.

Both sides are using the wrong leverage in their arguments. An uptick in unmet abortion need is disturbing, yes—because it means that patients are not getting necessary health care. While it may be Zika exposing the issue of late, it’s a symptom, not the problem. Patients should be able to choose to get an abortion for whatever reason and at whatever time, and that right shouldn’t be defended with disingenuous arguments that use disability for cover. The issue with not being able to access abortions after 20 weeks, for example, isn’t that patients cannot access therapeutic abortions for fetuses with anomalies, but that patients cannot access abortions after 20 weeks.

The insistence from pro-choice advocates on justifying abortions after 20 weeks around specific, seemingly involuntary instances, suggests that so-called “late term abortions” need to be circumstantially defended, which retrenches abortion stigma. Few advocates seem to be willing to venture into the troubled waters of fighting for the right to abortions for any reason after 20 weeks. In part, that reflects an incremental approach to securing rights, but it may also betray some squeamishness. Patients don’t need to excuse their abortions, and the continual haste to do so by many pro-choice advocates makes it seem like a 20-week or later abortion is something wrong, something that might make patients feel ashamed depending on their reasons. There’s nothing shameful about needing abortion care after 20 weeks.

And, as it follows, nor is there ever a “bad” reason for termination. Conservatives are fond of using gruesome language targeted at patients who choose to abort for apparent fetal disability diagnoses in an attempt to shame them into believing that they are bad people for choosing to terminate their pregnancies. They use the specter of murdering disabled babies to advance not just social attitudes, but actual policy. Republican Gov. Mike Pence, for example, signed an Indiana law banning abortion on the basis of disability into law, though it was just blocked by a judge. Ohio considered a similar bill, while North Dakota tried to ban disability-related abortions only to be stymied in court. Other states require mandatory counseling when patients are diagnosed with fetal anomalies, with information about “perinatal hospice,” implying that patients have a moral responsibility to carry a pregnancy to term even if the fetus has impairments so significant that survival is questionable and that measures must be taken to “protect” fetuses against “hasty” abortions.

Conservative rhetoric tends to exceptionalize disability, with terms like “special needs child” and implications that disabled people are angelic, inspirational, and sometimes educational by nature of being disabled. A child with Down syndrome isn’t just a disabled child under this framework, for example, but a valuable lesson to the people around her. Terminating a pregnancy for disability is sometimes treated as even worse than terminating an apparently healthy pregnancy by those attempting to demonize abortion. This approach to abortion for disability uses disabled people as pawns to advance abortion restrictions, playing upon base emotions in the ultimate quest to make it functionally impossible to access abortion services. And conservatives can tar opponents of such laws with claims that they hate disabled people—even though many disabled people themselves oppose these patronizing policies, created to address a false epidemic of abortions for disability.

When those on either side of the abortion debate suggest that the default response to a given diagnosis is abortion, people living with that diagnosis hear that their lives are not valued. This argument implies that life with a disability is not worth living, and that it is a natural response for many to wish to terminate in cases of fetal anomalies. This rhetoric often collapses radically different diagnoses under the same roof; some impairments are lethal, others can pose significant challenges, and in other cases, people can enjoy excellent quality of life if they are provided with access to the services they need.

Many parents facing a prenatal diagnosis have never interacted with disabled people, don’t know very much about the disability in question, and are feeling overwhelmed. Anti-choicers want to force them to listen to lectures at the least and claim this is for everyone’s good, which is a gross violation of personal privacy, especially since they don’t back their advocacy up with support for disability programs that would make a comfortable, happy life with a complex impairment possible. The pro-choice movement, on the other hand, often finds itself caught between the imperative to defend abortion as an absolute personal right and suggesting that some lived potentials are worth more than others. It’s a disturbing line of argument to take, alienating people who might otherwise be very supportive of abortion rights.

It’s clearly tempting to use Zika as a political football in the abortion debate, and for conservatives, doing so is taking advantage of a well-established playbook. Pro-choicers, however, would do better to walk off the field, because defending abortion access on the sole grounds that a fetus might have a disability rings very familiar and uncomfortable alarm bells for many in the disability community.

News Law and Policy

Court Blocks Two Extreme Alabama Anti-Abortion Provisions

Jessica Mason Pieklo

The temporary order prevents officials in Alabama from enforcing a ban on later abortions and implementing a law that would regulate abortion clinics in a similar fashion as sex offenders.

A federal judge on Wednesday temporarily blocked two Alabama abortion restrictions set to take effect August 1 that would ban abortion clinics near schools and criminalize the most commonly used later abortion procedure.

In May, Alabama Gov. Robert Bentley (R) signed into law a ban on abortion clinics within 2,000 feet of public K-8 schools. He also approved a separate measure banning the most common method of performing a later abortion, known as dilation and evacuation, or D&E, abortions.

The American Civil Liberties Union (ACLU) challenged both provisions on behalf of providers in the state, arguing they were unconstitutional. According to attorneys for the ACLU, the location restriction would close the state’s two busiest abortion clinics, while the method ban would hamper access to later abortions.

The first blocked measure would prohibit the Alabama Department of Public Health from issuing or renewing a health center license to an abortion clinic or reproductive health center close to some public schools. As reported by Rewire, this would effectively regulate abortion clinics in the same manner as registered sex offenders. In Alabama, sex offenders cannot reside within 2,000 feet of a school or child-care facility.

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The second blocked measure would outlaw most surgical abortions. Dilation and evacuation, the most common form of surgical abortion, is used in the majority of abortions after 13 weeks of pregnancy, according to the American College of Obstetricians and Gynecologists. It is extremely safe, with less than one in 1,000 patients experiencing complications.

Dr. Willie Parker, a physician who provides later abortions in Alabama, wrote in a statement to the court that, if allowed to take effect, the law would prevent him from performing abortions after 15 weeks of pregnancy.

According to Dr. Parker’s submission to the court, the only alternative to D&E is to induce labor in a hospital, a much riskier and expensive alternative for the patient.

U.S. District Judge Myron Thompson Wednesday issued a temporary restraining order to block the state from enforcing the provisions until after an October 4 hearing. In the meantime, both sides were ordered to submit written arguments to the court in advance of that October hearing.

Alabama is not the only state to attack later abortion access. Kansas and Oklahoma both passed similar bans, but those laws remain blocked by court order.

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