With reporting by Teddy Wilson.
Make no mistake—the war on reproductive rights is alive and well. From an unconstitutional 20-week (really 18-week) abortion ban just signed in Mississippi, to a truly scary bill in Tennessee that could make miscarriage a crime, some state legislators this year have remained determined to meddle with reproductive health-care choices.
But for every awful anti-choice bill that passes into law, there are about a dozen others that fail or never see the light of day. They fail for any number of reasons: election-year politics, personalities or priorities of the bill sponsors, and every now and then
because of good old-fashioned floor votes.
Reproductive rights supporters shouldn’t get too comfortable about the fact that most of the 300-plus anti-choice bills introduced so far this year will never become law. Scarily enough, we might start to see some states introduce fewer reproductive health bills simply because they have already passed the worst ones (short of an outright ban on abortion) that they think they can get away with, as Elizabeth Nash, state issues manager at the Guttmacher Institute, told Rewire. “Part of the issue is that legislatures have passed so many restrictions that there isn’t much left to legislate,” Nash said. And sometimes an extreme bill that fails, like Alabama’s proposed “heartbeat” abortion ban, will make a less-extreme-but-still-bad bill, like the state’s new restrictions on minors seeking abortion, look more palatable and pass more easily.
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Still, it’s worth enjoying a moment of relief as we look at some of the reproductive health bullets we’ve dodged so far this year in the state legislatures:
1. South Dakota tabled a bill that would have used a brand-new tactic to ban almost all abortions. Lots of states try to pass unconstitutional “heartbeat” bans on early abortion, like North Dakota’s, but this year South Dakota lawmakers tried to pass a bill containing some sneaky language about a “living” fetus being “dismembered” that could have effectively banned all surgical abortions after about seven weeks’ gestation in the state. The sponsor of that bill also tried and failed to pass a ban on abortion in the case of a Down syndrome diagnosis.
2. West Virginia’s governor vetoed a 20-week abortion ban—and a whole bunch of other bills never reached his desk. Gov. Earl Ray Tomblin vetoed the only 20-week abortion ban to be passed by a Democrat-controlled state legislature, a huge pro-choice victory. Twenty-week bans, which anti-choicers hope will eventually make the Supreme Court reconsider Roe v. Wade, have become trendy in conservative legislatures lately—13 states have passed them since 2010, although three have been struck down in court.
But that ban was just one of a whopping 20 anti-choice bills that were introduced in West Virginia this year. “While 20 sounds like a lot—and it is—it’s actually down from a record high of 77 a few years ago,” Margaret Chapman Pomponio, executive director of the pro-choice group WV FREE, told Rewire. “I think we have seen a decrease because legislators indicated to the anti-choice lobby there were too many. They were being bombarded.” And since almost none of these numerous bills have passed in recent years, she said, it shows that many legislators are unwilling to be so radically opposed to women’s health.
3. Mississippi’s governor did sign a 20-week ban, but some even scarier bills died in committee. Well, actually it was more like an 18-week ban, since other “20-week bans” define pregnancy in a way that gives women two more weeks than this one does. But it could have been even worse: A ban on abortion either at 12 weeks or after a “fetal heartbeat” is detected died in committee, as did a ban on abortion based on sex or race, and an age restriction on emergency contraception that flew in the face of federal law also went nowhere. (In further good news, Oklahoma’s similar emergency contraception age restriction was struck down earlier this year.)
But remember: Sometimes legislators determined to restrict reproductive freedom will introduce a large number of odious bills in the hopes that one or two of them will bubble to the surface as a legislative priority. Speaking of which…
4. Two severe anti-choice bills didn’t pass in Alabama. The state did extend an already unnecessary waiting period for an abortion from 24 to 48 hours, and made it much more difficult for a young woman under 18 to get the procedure regardless of whether her parents approve. But a near-total abortion ban in the form of a “heartbeat” restriction didn’t pass, nor did a cruel bill that would have required women carrying a fetus that won’t survive to hear about the option of using “fetal hospice” (a service that doesn’t actually exist in Alabama) rather than terminating the pregnancy.
5. A telemedicine abortion ban in Iowa died after missing a deadline. And a good thing, too: Doctors who have dispensed medicine to end a pregnancy while giving instructions remotely have provided safe abortion care to about 5,000 women in Iowa who lack access to clinics and might otherwise try more dangerous measures. The bill was a failed attempt to codify a ban that the state’s board of medicine passed last year, which has been blocked by courts while a lawsuit proceeds.
6. A dangerous Indiana bill was amended to be less harmful. After pro-choice advocates expressed concern that Indiana’s SB 292 would invite anti-choice violence by publishing the names of “back-up” doctors who partner with abortion providers, the bill was amended down. A much more innocuous version passed, and while it’s still unnecessary, it doesn’t do much to change how providers already operate in the state, Betty Cockrum, president and CEO of Planned Parenthood of Indiana and Kentucky, told Rewire earlier this month. “[Legislators] brought everybody to the table to have an open, forthright discussion, and they were interested in facts,” Cockrum said. “It was very encouraging.”
Unfortunately, Indiana also passed, and the governor signed, a ban on most private insurance coverage of abortion.
7. No new anti-choice laws in Kentucky… for now. Three anti-choice bills, including a forced ultrasound bill, were voted down last month in Kentucky’s state house. This was an unsurprising outcome, given that the Democratic chair of the house health committee has studiously kept anti-choice bills from reaching the floor for several years. But if Republicans were to retake the house in November, Kentucky women could face new restrictions on their reproductive rights in a state that’s already lousy on the subject.
8. Even some fairly subtle anti-choice laws are getting nixed. Nebraska has indefinitely postponed a new bill that would post signs telling women that it is “against the law for anyone to force you to have an abortion.” This may sound pretty innocuous, but it appears to be based on model legislation by anti-choice juggernaut Americans United for Life, and is likely a subtle attempt to dissuade women from having an abortion. Coerced abortion is already against the law, advocates say, and women are informed about that law when they are considering an abortion.
9. Abortion bills died in several states where you wouldn’t even expect abortion bills to be introduced. They introduced a 20-week ban in Maryland? Rhode Island considered a dozen bills related to abortion, the majority of which were anti-choice? Massachusetts, you too? And New Hampshire—which has a libertarian streak, but is still probably going to pass a buffer zone law—considered anti-choice bills as well.
The good news is that anti-choice bills in blue and purple states usually don’t go anywhere. New Hampshire came pretty close to passing a fetal homicide law, but it was voted down, and the state legislature also said no to a “life begins at conception” bill, a TRAP (targeted regulation of abortion providers) law that could have closed clinics, and a bill mandating the collection of abortion statistics.
10. Even with hundreds of anti-choice bills introduced, there were fewer than in some recent years because of the upcoming midterms. 2014 is a midterm election year, which means that some legislative sessions are shortened to allow lawmakers to campaign. Shorter sessions mean fewer bills, including anti-choice ones, being introduced and passed. Also, as Guttmacher’s Elizabeth Nash put it, there is “some reluctance to address hot-button issues” like abortion while legislators are heading out on the campaign trail. For instance, it might be that we haven’t seen as much anti-choice legislation as expected from Florida this year because of the gubernatorial election.
An even-numbered year also means that perennial anti-choice offenders like North Dakota and Texas aren’t in session, so residents there automatically dodge, for now, the next bullet to come out of those states—bills like North Dakota’s six-week “heartbeat” abortion ban (blocked by courts) or Texas’s omnibus abortion law, HB 2 (not blocked by courts, and thus still wreaking havoc this year on women in underserved areas of Texas who want to access constitutionally protected health care).
So, there are some reasons to be grateful so far this year. It’s not yet clear what next year—not to mention the rest of 2014—will hold, but this much we know, says Nash: Abortion restrictions are introduced and passed every year, as they have been for decades since Roe v. Wade. While we might start seeing more state legislatures repeal old restrictions as pro-choice advocates get proactive on reproductive rights, it will take a while to see significant progress in that arena because of how profoundly the 2010 midterm elections shifted the states in a conservative direction. As Nash noted, “Pulling back from that will take a very long time.”