A South Carolina bill that passed a senate committee on Thursday would expand the state’s “stand your ground” self-defense law to include fetuses.
Under the new law, pregnant women would be protected from prosecution if they use lethal force to defend their “unborn children,” defined as “the offspring of human beings from conception until birth.”
Reproductive rights activists say the bill is unnecessary because current law already allows any person, including pregnant women, to use lethal force to protect themselves.
While the law would not actually ban abortion or contraception, as suggested in some news reports, it still “could be a strategy of the anti-abortion movement to chip away at rights,” Amanda Allen, state legislative counsel for the Center for Reproductive Rights, told Rewire.
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Allen said the bill does not grant fetuses full legal “personhood” rights, and doesn’t touch on abortion or contraception. But, she said, “The threat is whether the personhood language could be exploited down the line to restrict access to reproductive health.”
The anti-choice group Americans United for Life wrote model language for the bill, and has long advocated for laws that create harsher penalties, or even a separate crime, for harming fetuses.
A fetal homicide bill currently advancing in Florida, HB 59, would create a separate crime for harming a fetus during an attack on a pregnant woman, and, like South Carolina’s proposed law, applies to the earliest stages of pregnancy. At least 38 states have fetal homicide laws, and at least 23 of those apply to the earliest stages of pregnancy.
The proposed laws in Florida and South Carolina are different: while Florida’s has to do with creating a separate crime, South Carolina’s deals with expanding that state’s self-defense law. But both bills “raise the specter of personhood in the law,” Allen said, and neither is necessary.
“For both bills, the question is not whether pregnant women should have sufficient protection under the law,” Allen said. “The question is really how to do that in a way that wouldn’t jeopardize reproductive rights down the line, and both the South Carolina and the Florida bills fail to strike that balance appropriately.”
So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.
So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.
Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.
Signs of Progress
The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedtstruck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear.
Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.
More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.
As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.
But the Assault Continues
Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:
Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.
The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:
South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.
Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.
Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana granted a preliminary injunction against the law's final disposition and sex, race, and genetic anomalies ban on Thursday, just a day before the law was to take effect.
A federal judge has blocked several provisions of an omnibus anti-abortion law that would have placed restrictions on the circumstances under which a pregnant person could decide to terminate their pregnancy.
Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana granted a preliminary injunction against the law‘s final disposition and sex, race, and genetic anomalies ban on Thursday, just a day before the law was to take effect.
Planned Parenthood of Indiana and Kentucky worked with the American Civil Liberties Union of Indiana to file a lawsuit and request an injunction in April, according to a local ABC affiliate.
Under the provisions halted by the injunction, pregnant persons across the state would have been banned from aborting a fetus based on an abnormality or race or gender-related reasons, among others.
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The Indiana General Assembly passed the law, also known as House Enrolled Act 1337, in March. Indiana Gov. Mike Pence, a Republican, signed the act shortly thereafter that month.
A similar bill failed to pass in the Indiana legislature last year. The version Pence signed this spring included a mandatory ultrasound requirement, a provision targeting fetal tissue donation, and a measure requiring physicians to provide information about hospice care to a pregnant person “who is considering an abortion because the fetus has been diagnosed with a lethal anomaly,” as previously reported by Rewire.
Reproductive health groups have said the notion of race and sex-selection abortions are based on misinformation, and disability advocates have said that HEA 1337 promotes speculation among physicians and perpetuates false narratives about the disabled community.
In her concluding statement, Pratt cited Roe v. Wade and Planned Parenthood v. Casey and said that the Supreme Court has made it clear a state “may not prohibit any woman for making the ultimate decision to terminate her pregnancy before viability.”
She went on to say the law’s information dissemination provision was “likely unconstitutional” as it requires abortion providers to convey false information regarding anti-discrimination provisions to their patients.
John Zody, chairman of the Indiana Democratic Party, called HEA 1337 “a harmful piece of legislation” and noted that legislators from both parties had criticized the measure, in a statement on Thursday.
“Today’s ruling by a federal judge emphasizes just how out of touch Gov. Pence’s ideology is with everyday Hoosiers and the law. The governor’s political agenda has caused real harm to the state’s already sluggish economy while also putting our reputations in further jeopardy,” Zody said.
Indiana Right to Life panned Pratt’s decision and noted that she blocked provisions of an Indiana law that denied taxpayer funds to abortion businesses and required that pregnant people be informed about a fetus’ so-called ability to feel pain in 2011.
The notion of fetal pain, as promoted by Stanford University School of Medicine professor Dr. Kanwaljeet “Sunny” Anand, was debunked in an article published by the Journal of the American Medical Associationin 2005.
The fetal anomaly law was among nine laws set to go into effect on Friday, according to the Indianapolis Star. One of the nine bills includes a law instituting new guidelines on police body and dashboard camera footage that will allow local police departments to decide whether it will release videos. Members of the public will be allowed to appeal a police department request for footage, according to the Star.