News Law and Policy

In Case You Missed It: Three States Have Proposed 20-Week Abortion Bans in First Weeks of 2015

Nina Liss-Schultz

In the midst of the Republican-controlled Congress’ introduction—and then revocation—of a 20-week abortion ban, along with its introduction of a handful of other anti-choice bills, it can be easy to forget that the fight for abortion access is largely taking place in state legislatures.

In the midst of the Republican-controlled Congress’ introduction—and then revocation—of a 20-week abortion ban, along with its introduction of a handful of other anti-choice bills, it can be easy to forget that the fight for abortion access is largely taking place in state legislatures.

At least three states have already introduced 2015 legislation that would ban abortion after 20 weeks: South Carolina, West Virginia, and Virginia. As Rewire has reported, lawmakers in the three states have introduced a smattering of choice-related legislation, which include bans on abortion weeks before medical experts have said a fetus can be “viable,” the term laid out by Roe v. Wade as the point after which abortion may not be legally protected.

South Carolina lawmakers last week introduced two bills, SB 130 and SB 25, that would create penalties for physicians who perform abortions after 20 weeks post-fertilization. The bills, both deceptively named the “South Carolina Pain-Capable Unborn Child Protection Act,” are based on faulty evidence claiming that fetuses can feel pain after about 20 weeks.

SB 130 would create exceptions for medical emergencies or cases in which the pregnancy is caused by rape or incest; any physician who performs an abortion after 20 weeks, unless the case falls under those three exceptions, would have his or her medical license revoked.

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SB 25 creates an exception if there is a medical emergency. Physicians who perform abortions after 20 weeks under this bill could be found guilty of a misdemeanor offense.

In West Virginia, state Rep. David Perry (D-Fayette) introduced HB 2153, his second 20-week abortion ban in two years. Democratic Gov. Earl Ray Tomblin has said he will veto the bill if it gets to his desk, though Republicans may have enough votes this year to overturn the governor’s veto.

In Virginia, lawmakers on Thursday introduced HB 2321, a bill that would make performing an abortion after 20 weeks, except in cases of medical emergency, a felony offense.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

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.

Mid year state restrictions

 

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. Hellerstedt struck 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.

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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.

071midyearstateeligibilitytable

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:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • 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.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

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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.

News Politics

Anti-Choice Group Faces Fundraising Gap in ‘Topsy-Turvy Year’

Amy Littlefield

“I will tell you that this has been the toughest year we have faced since I’ve been executive director of National Right to Life—and I came here in 1984—for our political fundraising,” David O’Steen announced at the annual National Right to Life Convention Friday.

Less than two weeks after the Supreme Court dealt the anti-choice movement its most devastating blow in decades, one of the nation’s leading anti-choice groups gathered at an airport hotel in Virginia for its annual convention.

The 46th annual National Right to Life Convention arrived at what organizers acknowledged was an unusual political moment. Beyond the Supreme Court’s decision to strike down abortion restrictions in Texas, the anti-choice movement faces the likely nomination later this month of a Republican presidential candidate who once described himself as “very pro-choice.”

The mood felt lackluster as the three-day conference opened Thursday, amid signs many had opted not to trek to the hotel by Dulles airport, about an hour from Washington, D.C. With workshops ranging from “Pro-Life Concerns About Girl Scouts,” to “The Pro-Life Movement and Congress: 2016,” the conference seeks to educate anti-choice activists from across the United States.

While convention director Jacki Ragan said attendance numbers were about on par with past years, with between 1,000 and 1,100 registrants, the sessions were packed with empty chairs, and the highest number of audience members Rewire counted in any of the general sessions was 150. In the workshops, attendance ranged from as many as 50 people (at one especially popular panel featuring former abortion clinic workers) to as few as four.

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The attendance wasn’t the only sign of flagging enthusiasm.

“I will tell you that this has been the toughest year we have faced since I’ve been executive director of National Right to Life—and I came here in 1984—for our political fundraising,” National Right to Life Executive Director David O’Steen announced at Friday morning’s general session. “It’s been a topsy-turvy year. It’s been, for many people, a discouraging year. Many, many, many pro-life dollars, or dollars from people that would normally donate, were spent amongst 17 candidates in the Republican primary.”

O’Steen said the organization needed “$4 million that we do not have right now.”

When asked by Rewire to clarify details of the $4 million shortfall, O’Steen said, “You’re thinking this through more deeply than I have so far. Basically, the Right to Life movement, we will take the resources we have and we will use them as effectively as we can.”  

O’Steen said the organization wasn’t alone in its fundraising woes. “I think across many places, a lot of money was spent in these primaries,” he said. (An analysis by the Center for Public Integrity found presidential candidates and affiliated groups spent $1 billion on the presidential race through March alone, nearly two-thirds of it on the Republican primary. Anti-choice favorite Texas Sen. Ted Cruz (R) spent more than than $70 million, higher than any other Republican.)

The National Right to Life Board of Directors voted to back Cruz in the Republican presidential primaries back in April. It has not yet formally backed Donald Trump.

“I really don’t know if there will be a decision, what it will be,” National Right to Life Committee President Carol Tobias told Rewire. “Everything has [been] kind of crazy and up in the air this year, so we’re going to wait and kind of see everything that happens. It’s been a very unusual year all the way around.”

Some in the anti-choice movement have openly opposed Trump, including conservative pundit Guy Benson, who declared at Thursday’s opening session, “I’m not sure if we have someone who is actually pro-life in the presidential race.”

But many at the convention seemed ready to rally behind Trump, albeit half-heartedly. “Let’s put it this way: Some people don’t know whether they should even vote,” said the Rev. Frank Pavone, national director of Priests for Life. “Of course you should … the situation we have now is just a heightened version of what we face in any electoral choice, namely, you’re choosing between two people who, you know, you can have problems with both of them.”

Another issue on the minds of many attendees that received little mention throughout the conference was the Supreme Court’s recent ruling in Whole Woman’s Health v. Hellerstedt, which struck down provisions in Texas requiring abortion providers to have hospital admitting privileges and mandating clinics meet the standards of hospital-style surgery centers. The case did not challenge Texas’ 20-week abortion ban.

“We aren’t going to have any changes in our strategy,” Tobias told Rewire, outlining plans to continue to focus on provisions including 20-week bans and attempts to outlaw the common second-trimester abortion procedure of dilation and evacuation, which anti-choice advocates call “dismemberment” abortion.

But some conference attendees expressed skepticism about the lack of any new legal strategy.

“I haven’t heard any discussion at all yet about, in light of the recent Supreme Court decision, how that weighs in strategically, not just with this legislation, but all pro-life legislation in the future,” Sam Lee, of Campaign Life Missouri, said during a panel discussion on so-called dismemberment abortion. “There has not been that discussion this weekend and that’s probably one of my disappointments right now.”

The Supreme Court decision has highlighted differing strategies within the anti-choice community. Americans United for Life has pushed copycat provisions like the two that were struck down in Texas to require admitting privileges and surgery center standards under the guise of promoting women’s health. National Right to Life, on the other hand, says it’s focused on boilerplate legislation that “makes the baby visible,” in an attempt to appeal to Supreme Court Justice Anthony Kennedy, who cast a key vote to uphold a “partial-birth abortion” ban in 2007.

When asked by Rewire about the effect of the Texas Supreme Court case, James Bopp, general counsel for the National Right to Life Committee, appeared to criticize the AUL strategy in Texas. (Bopp is, among other things, the legal brain behind Citizens United, the Supreme Court decision that opened the floodgates for corporate spending on elections.)

“This case was somewhat extreme, in the sense that there were 40 abortion clinics—now this is just corresponding in time, not causation, this is a correlation—there were 40 abortion clinics and after the law, there were six,” Bopp said. “That’s kind of extreme.”

Speaking to an audience of about ten people during a workshop on campaign finance, Bopp said groups seeking to restrict abortion would need to work harder to solidify their evidence. “People will realize … as you pass things that you’re going to have to prove this in court so you better get your evidence together and get ready to present it, rather than just assuming that you don’t have to do that which was the assumption in Texas,” he said. “They changed that standard. It changed. So you’ve gotta prove it. Well, we’ll get ready to prove it.”