Roundups Law and Policy

Legislative Lowlights: Lawmakers in Ten States Have Introduced ‘Heartbeat’ Bans This Year

Brie Shea

And in Maryland, state Republicans introduced not one, but three, so-called heartbeat bans.

Rewire.News tracks anti-choice and anti-LGBTQ legislation as it works its way through state legislatures. Here’s an overview of the bills we’re watching.

Arkansas and Tennessee lawmakers are planning for the fall of Roe v. Wade, Republicans in multiple states are still obsessed with bathrooms, and legislators in at least ten states have introduced measures this year to ban abortion once a fetal heartbeat has been detected.

Arkansas

The Arkansas State Senate on Thursday passed SB 149, which would ban abortion statewide if Roe v. Wade is overturned. Except in cases of medical emergency, the “Human Life Protection Act” would make it a felony—punishable by up to ten years in prison—to perform or attempt to perform an abortion. Currently, four states (Louisiana, Mississippi, South Dakota, and North Dakota) have “trigger” laws that would immediately re-criminalize abortion should Roe v. Wade fall. The measure is scheduled for a hearing with the state house’s public health, welfare, and labor committee on February 12.

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On Thursday, state Sen. Gary Stubblefield (R-Branch) introduced SB 278, which would make several changes to laws regulating abortion. The measure would require abortion facilities to be located within 30 miles of a hospital that provides gynecological or surgical services, increase the state’s medically unnecessary waiting period for pregnant people seeking an abortion from 48 hours to 72 hours, and require physicians to report on any abortion that results in a live birth. The measure would also increase the penalty for physicians who fail to comply with informed consent requirements from a misdemeanor to a felony

On the other side of the chamber, Republican lawmakers introduced measures to further restrict abortion and to prohibit state funding of certain types of research involving human embryos. State Rep. Karilyn Brown (R-Sherwood) last Wednesday introduced the “Prohibition of Public Funding of Human Cloning and Destructive Embryo Research Act.” The measure would prohibit state funds from being used to buy or receive gametes or human embryos if it’s known that they would ultimately be destroyed. Certain types of research or procedures would be exempt from the funding ban—including in vitro fertilization and the administration of fertility-enhancing drugs.

Illinois

Last Monday, state Rep. Patrick Windhorst (R-Metropolis) introduced a measure to ban abortion after 20 weeks. Except in cases of medical emergency, HB 2058 would prohibit physicians from performing or inducing an abortion without first determining the probable gestational age of the fetus; if the physician determines the fetus to be at 20 weeks’ gestation, they would be prohibited from performing an abortion. A physician who performs an abortion in violation of the law would face felony charges, punishable by up to seven years in prison. The measure is based on model legislation drafted by Americans United for Life (AUL). This is the sixth state this year (after Delaware, Florida, Missouri, Oregon, and Washington) to propose an abortion ban around 20 weeks.

State Rep. Thomas Morrison (R-Palatine) last week introduced measures to restrict abortion funding and ban certain selective abortions. Except in cases of emergency, HB 2286 would prohibit the state from using funds to pay for an abortion or to provide coverage for elective abortions. An identical measure was introduced last week in the state house. Morrison’s second measure, HB 2281, would prohibit a person from performing an abortion if they know that the pregnant patient is seeking the abortion due to the sex, race, color, national origin, or ancestry of the fetus. The measure would also prohibit the performance of an abortion if the patient is seeking it because the fetus has or may have Down syndrome or any other disability. Pregnant people carrying a fetus diagnosed with a lethal anomaly would still be able to have an abortion, but physicians would first need to provide them with perinatal hospice information. The measure is similar to a 2016 Indiana law signed by then-Gov. Mike Pence (R) that’s been blocked twice in federal courts. A petition to review the case is still pending before the U.S. Supreme Court.

On Friday, state Rep. Charles Meier (R-Okawville) introduced the “Ultrasound Opportunity Act.” Except in cases of medical emergency, a physician would first need to offer any patient seeking an abortion after 8 weeks’ gestation an opportunity to view an ultrasound. The pregnant person may choose to decline but would still need to certify their decision. The measure has failed to pass in Illinois for the last several years.

Iowa

Republican lawmakers last week introduced HF 257, which would prohibit federal Title X family planning grants from being distributed to any entity that provides abortions or that maintains or operates a facility where abortions are performed. The measure would ban the state department of public health and the state department of human services from contracting with any entity that provides abortions, maintains or operates a facility where abortions are performed, or regularly makes referrals to an entity that provides abortions. The measure—originally drafted by the Alliance Defending Freedom (ADF) and the Susan B. Anthony List—is identical to several previously failed measures in the state. 

Last Wednesday, conservative lawmakers introduced the Iowa “Religious Freedom Restoration Act,” which would prohibit the state from substantially burdening a person’s exercise of religion. The measure is similar to the federal Religious Freedom Restoration Act (RFRA) and at least 22 other state-level RFRAs. Iowa’s version differs from the federal RFRA by allowing religious freedom to be raised as a defense in lawsuits between private citizens—opening up the door for individuals to use their religion in order to bypass nondiscrimination laws.

Maryland

State house members in Maryland last week introduced not one, but three, so-called heartbeat bans. Despite minor differences, all three measures would prohibit the performance of an abortion when a physician has detected a fetal heartbeat. HB 933 would allow the health department to adopt regulations for the method of detecting a fetal heartbeat. HB 978—the so-called “Keep Our Hearts Beating Act”—is the most basic version and would require physicians to keep additional information regarding the fetal heartbeat in the patient’s medical record. And HB 1195 would require physicians to display ultrasound images so the pregnant patient can view them.

State Rep. Robin Grammer (R-Baltimore County) introduced the “Pain-Capable Unborn Child Protection Act,” a measure to ban abortion after 20 weeks post-fertilization. This version of a 20-week measure is based on model legislation drafted by the National Right to Life Committee (NLRC) and has failed to advance in Maryland for the past few years.

State house members also introduced legislation to further regulate abortion providers. HB 1193 would require each abortion facility to meet the same standards required for an ambulatory surgical facility. HB 1151 would require that at least 24 hours elapse between the initial consultation and actual performance of an abortion. HB 964 would prohibit a physician from performing an abortion on a minor unless the physician obtains consent from a parent or guardian of the minor. The “Woman’s Right to Know Act,” HB 1075, would prohibit a physician from performing an abortion unless the pregnant person voluntarily provides their informed consent. Among other things, the physician would need to inform the pregnant patient of certain risks associated with abortion—including breast cancer—which is not a thing. Democrats control both the state house and state senate, so it’s unlikely that any of these measures will pass.

Mississippi

Some good news and some bad news. Most of the anti-choice measures that were being considered in the Mississippi State Legislature so far this year—which we covered here—have failed. But two bills that would ban abortion once a fetal heartbeat is detected have advanced. Last Tuesday, HB 732 and SB 2116 both passed legislative committees. The measures would potentially ban abortion as early as six weeks into a pregnancy. They now head to their respective chambers for further consideration. Gov. Phil Bryant (R) signaled support for the measures last month.

Missouri

Last week, state Sen. Andrew Koenig (R-Manchester) introduced the “Right to Life of the Unborn Child Act.” Except in cases of medical emergency, the measure would make it a felony to perform or induce an abortion. The bill includes a statement from the state general assembly declaring its intention that the state will be a “sanctuary of life” to protect “pregnant women and their unborn children.” A similar total abortion ban was introduced in the state house last month.

Last Monday, state Sen. Paul Wieland (R-Imperial) introduced SB 338, which would exclude emergency contraception from the state’s Medicaid family planning coverage. Except in cases of life endangerment, MO HealthNet—the state’s Medicaid program—would not cover any federally-approved drug or device that may cause the destruction of a human embryo. This measure comes just a week after another state lawmaker introduced legislation to prohibit pharmacies from providing emergency contraceptives over-the-counter.

State Rep. Jeff Pogue (R-Salem)—who has been very busy these days—is still trying to keep trans folks from using the bathroom. The state representative last Monday introduced a measure to require all public restrooms be designated as gender-divided restrooms unless they are single occupancy. The bill would prohibit cities and local businesses from enacting any conflicting ordinance or policy—like an ordinance requiring “gender neutral” facilities. Previous attempts by the lawmaker have all failed.

New Mexico

Republican lawmakers introduced the “Health Care Freedom of Conscience Act,” which would allow health-care providers and insurance companies to refuse to participate in a health-care service that violates their conscience. The measure—based on model legislation drafted by Americans United for Life (AUL)—would allow health-care providers and insurance companies to refuse to participate in—or provide coverage for—birth control, abortion, and gender-affirming surgery or therapy. A nearly identical measure was introduced in Arkansas last month.

North Carolina

Republican state lawmakers last week introduced a measure to ban abortion after 13 weeks of pregnancy unless there’s a medical emergency. Current state law prohibits abortion after 20 weeks of pregnancy. The measure doesn’t include any legislative findings to explain why abortion should be prohibited at 13 weeks. But it joins a growing list of states throwing out arbitrary gestational-age cutoffs and seeing what sticks (see Utah’s 15-week ban and the 11-week bans out of Kentucky and Washington).

Last Tuesday, state Rep. Larry Pittman (R-Cabarrus) introduced HB 22, which would require physicians who prescribe the abortion pill to inform patients that it’s possible to “reverse” the effects of medication abortion—a treatment that remains unproven. Nevertheless, four states (Arkansas, Idaho, South Dakota, and Utah) require physicians to provide “reversal” information. This is the fourth state this year (after Nebraska, North Dakota, and Oklahoma) to propose an “abortion reversal” measure.

Tennessee

Lawmakers in both houses of the Tennessee General Assembly last week introduced the “Human Life Protection Act,” which would trigger a state-wide abortion ban if Roe v. Wade were overturned. HB 1029/SB 1257 would make it a felony—punishable by up to 15 years in prison—to perform or attempt to perform an abortion, except in cases of life endangerment or serious risk of irreversible impairment. The measures are nearly identical to the “Human Life Protection Act” that just advanced in the Arkansas State Legislature.

State Rep. John Ragan (R-Oak Ridge) and state Sen. Ed Jackson (R-Jackson) introduced legislation that would prohibit state funding of abortion. The so-called “Life Appropriation Act” would prohibit the state from funding an individual or entity that performs, induces, refers or counsels in favor of “convenience abortions.” This is the second state this year to introduce the “Life Appropriation Act.” The measure was drafted by a group led by Chris Sevier—who has spent the last few years trolling state and federal courts with lawsuits in an attempt to gut LGBTQ rights. Sevier was also behind last year’s anti-LGBTQ “parody marriage” bills that sought to end same-sex marriage, and more recently, a measure in Arizona that would tax porn to pay for Trump’s border wall.

State Rep. Terri Lynn Weaver (R-Lancaster) and state Sen. Janice Bowling (R-Tullahoma) introduced measures to criminalize substance abuse during pregnancy. HB 1168/SB 659 would allow a person to be prosecuted for assault for the illegal use of a narcotic while pregnant, if their “child is born addicted to or harmed by the narcotic drug and the addiction or harm is a result of [the person’s] illegal use of a narcotic drug while pregnant.” The measure is similar to the state’s Fetal Assault Law of 2014, which expired in 2016. Assault is considered a Class A misdemeanor in Tennessee, which is punishable by up to a year in prison and a $2,500 fine.

Republican lawmakers also introduced a flurry of anti-LGBTQ measures—including four separate bills that would allow adoption and foster placement agencies to discriminate in, or refuse, the services they offer to LGBTQ families and children. HB 1152/SB 848 would prohibit a child-placing agency from being required to provide adoption services that conflict with the agency’s “sincerely held religious beliefs.” HB 836/SB 1304 would prohibit a private licensed child-placing agency from being required to perform or participate in any child placement for foster care or adoption that would violate the agency’s written religious or moral convictions. Ten states currently allow publicly funded adoption agencies to discriminate against same-sex couples and other prospective parents based on the agency’s religious beliefs.

It’s not just adoption—some lawmakers in Tennessee still haven’t given up on attacking same-sex marriage. State Rep. Jerry Sexton (R-Bean Station) and state Sen. Mark Pody (R-Lebanon) introduced HB 1369/SB 1282, which would ban same-sex marriage. The “Natural Marriage Defense Act,”—which failed to pass last session—declares that “natural” marriage between one man and one woman remains the law in Tennessee, regardless of any court decision to the contrary. The measure prohibits government officials from giving force or effect to any court order that affirms same-sex marriage. It was originally drafted by the Liberty Counsel, an anti-LGBTQ litigation firm.

Republican lawmakers also brought back legislation targeting trans folks. HB 1274/SB 1499 would direct the state attorney general to defend a local education agency (LEA) or certain LEA employees in any court or administrative tribunal arising out of the adoption of a policy or practice designating multi-person restrooms, locker rooms, or other facilities for use based only on one’s biological sex. Not to be outdone, state Rep. John Ragan (R-Oak Ridge) and state Sen. Mark Pody introduced HB 1151/SB 1297, which would expand the definition of “indecent exposure” to include incidents occurring in a restroom, locker room, dressing room, or shower designated for single-sex, multi-person use, if the offender is a member of the opposite sex than the sex designated for use. If passed, transgender individuals would be at risk of conviction for using public accommodations that conform to their gender identity. A similar measure was considered in Arkansas last session, where it managed to pass the state house before stalling in the state senate.

Texas

Republican lawmakers in Texas last week introduced legislation to prohibit abortion once a fetal heartbeat has been detected—which can occur as early as six weeks into a pregnancy. Except in cases of medical emergency, HB 1500 would make it a felony to perform or induce an abortion on a pregnant person if the fetus has a detectable heartbeat. The measure would allow the state to adopt rules specifying the appropriate tests to be used in determining the presence of a fetal heartbeat based on “standard medical practice.”

West Virginia

Lawmakers from both parties last week introduced measures to ban abortion as early as six weeks into a pregnancy. Except in cases of medical emergency or when an abortion is “medically necessary,” HB 2915 would prohibit the performance of an abortion once a fetal heartbeat has been detected. An abortion would be “medically necessary” if the pregnancy was a result of rape or incest, there was a miscarriage, or the fetus has a lethal anomaly. The measure would also ban the transfer or use of fetal body parts. State Rep. Ralph Rodighiero (D-Logan) introduced the bipartisan “Fetal Heartbeat Act,” which would prohibit a physician from performing or inducing an abortion on a pregnant person once a fetus has a detectable heartbeat. The measure specifies that the examination to determine a fetal heartbeat should be done externally—meaning an invasive transvaginal ultrasound would be prohibited. The measure would also allow the state to conduct inspections of abortion facilities to make sure physicians are complying with reporting requirements. West Virginia is the tenth state this year (after Florida, Kentucky, Maryland, Minnesota, Mississippi, Missouri, South Carolina, Tennessee, and Texas) to introduce a “heartbeat ban.”

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