Roundups Law and Policy

Legislative Lowlights: Total Abortion Bans Are Flying Through State Legislatures

Brie Shea

Republicans' total abortion bans, supported by anti-choice Democratic lawmakers, keep running into legal roadblocks.

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.

Lawmakers in Arkansas and Utah passed 18-week abortion bans, more states will now require abortion “reversal” information for pregnant people seeking abortion care, and Kentucky Republicans tried to ban abortion, but a federal judge wasn’t having it.

Arkansas

The Arkansas legislature last week passed HB 1439, which would make it a felony, punishable by up to six years in prison, to perform an abortion if a fetus has reached 18 weeks’ gestational age. Arkansas already bans abortion 20 weeks into a person’s pregnancy. The “Cherish Act” includes exceptions for cases of medical emergency or pregnancies resulting from rape or incest. The state house on Wednesday gave final approval to the measure by an 86-1 vote, with state Rep. David Whitaker (D-Fayetteville) being the sole “no” vote.

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Republican Gov. Asa Hutchinson (R) on Friday signed the measure into law. The ACLU of Arkansas had already said they plan to challenge the ban in court.

The state senate on Thursday passed SB 448, which would require physicians—at the risk of a felony—to be licensed to practice medicine and be board-certified or board-eligible in obstetrics and gynecology. The bill would define “viability” as a “reasonable likelihood of sustained survival of the unborn child outside the body of the mother” and repeal the state’s legal presumption that a fetus is viable at 25 weeks of pregnancy. Three Democratic lawmakers joined Republicans to pass the measure in a 29-5 vote: state Sens. Eddie Cheatham (D-Crossett), Bruce Maloch (D-Magnolia), and Larry Teague (D-Nashville).

The bill is now pending in the state house public health, welfare, and labor committee.

Georgia

The state senate science and technology committee on Monday approved HB 481, an omnibus abortion bill that would prohibit abortion once a fetal heartbeat is detected—effectively banning abortion as early as six weeks into a pregnancy. The measure—which passed out of committee by a 3-2 vote—includes exceptions for medical emergencies and pregnancies that are the result of rape or incest.

The “Living Infants Fairness and Equality (LIFE) Act” would require any abortion performed after the first trimester to be performed in a licensed hospital, in a licensed ambulatory surgical center, or in a licensed abortion facility. Only a licensed physician would be able to perform an abortion. The bill contains a fetal “personhood” provision that would include embryos and fetuses in state population-based determinations.

The measure could be up for a floor vote in the state senate as early as this week.

Illinois

The state house informed consent committee on Thursday was assigned the “Youth Health Protection Act,” which would prohibit doctors from providing transgender minors with any transition-related health care. It would be considered “unprofessional conduct” for a physician to provide hormones, surgery, or even just a referral to a transgender minor seeking gender-affirming care. The physician would be subject to discipline, and could have their medical license revoked. The legislative findings of the bill begin with the statement, “At birth, doctors identify the sex of babies. They do not assign them a gender.”

The findings include statements from various conservative organizations—including the American College of Pediatricians (ACP), an anti-LGBTQ hate group that likes to equate gender-affirming care for minors as child abuse.

The measure is scheduled to have a committee hearing on March 20.

Kentucky

The GOP-held Kentucky General Assembly last week passed a handful of anti-choice measures. In a 32-4 vote, the state senate on Wednesday granted final approval to HB 5, which would make it a felony to perform an abortion if the pregnant person is seeking it because of the sex, race, color, national origin, or disability of the fetus.

The legislation was based on anti-choice misinformation about why people seek abortion care. Four Democratic lawmakers voted with Republicans to pass the measure: state Sens. Julian Carroll (D-Frankfort), Dennis Parrett (D-Elizabethtown), Johnny Ray Turner (D-Prestonsburg), and Robin Webb (D-Grayson). The measure is similar to a blocked 2016 Indiana law signed by then-Gov. Mike Pence (R) that is pending review at the U.S. Supreme Court. Less than 24 hours after its passage, the American Civil Liberties Union (ACLU) filed a lawsuit challenging the law.

Despite the legal challenge, Kentucky Gov. Matt Bevin (R) intends to sign the measure into law.

On Thursday, the state house voted 71-19 to pass SB 9, which would prohibit abortion as early as six weeks into a pregnancy. Ten Democratic lawmakers joined Republicans to pass the measure. Except in cases of medical emergency, the bill would make it a felony to perform or induce an abortion once a fetal heartbeat has been detected. The law, which bans abortion before many people know they’re pregnant, amounts to a total abortion ban. The ban is clearly unconstitutional—which is why the ACLU amended its complaint against HB 5 on Friday to include a challenge against the “heartbeat” ban.

Upon hearing about the legal challenges, Bevin tweeted: “Bring it! Kentucky will always fight for life.” And on Friday, District Court Judge David Hale brought it: a temporary restraining order blocking the “heartbeat” ban.

In a 32-5 vote, the state senate passed HB 148, which would ban abortion statewide if Roe v. Wade is overturned. Democratic state Sens. Carroll, Parrett, Turner, and Webb joined Republicans once again to pass the measure. Except when necessary to prevent the death or serious injury of a pregnant person, it would be a felony to use or employ any instrument or procedure upon a pregnant person with the intent of causing or abetting an abortion. Arkansas this year became the fifth state (after Louisiana, Mississippi, South Dakota, and North Dakota) to have a “trigger” law that would immediately re-criminalize abortion should Roe v. Wade fall.

The measure is awaiting the governor’s signature.

Finally, the state legislature last week passed SB 50, which would require prescriptions of medication abortion to include information on the potential ability of a physician to “reverse” its effects. The measure would require physicians to report any prescription of abortion-inducing drugs to the state. The state house on Wednesday passed the measure in a 75-19 vote, and the state senate on Thursday gave final approval. Four states (Arkansas, Idaho, South Dakota, and Utah) require physicians to provide such experimental and unproven treatment information.

The legislation is awaiting gubernatorial approval.

Michigan

Republican lawmakers last Tuesday introduced measures that would ban dilation and evacuation (D and E) procedures—the most common method of performing second-trimester abortions. HB 4320/HB 4321 would make it a felony—punishable by up to two years in prison—to perform a “dismemberment abortion” unless it’s necessary to save the life of the pregnant person. The bills are identical to measures that failed in the state legislature during the 2017-2018 session. Mississippi and West Virginia ban the procedure, but courts have blocked or temporarily enjoined the law in seven other states. A similar ban in Ohio is facing its own legal challenge.

Conservative lawmakers last week introduced a measure to cut state funding to health-care facilities that perform abortions. HB 4322 would prohibit the state from allocating federal or state funds to a facility that performs more than 120 abortions per year and that advertises outpatient abortion services. The measure would make it the state’s policy to refrain from allocating funding to entities that include abortion in their family planning or comprehensive reproductive health services.

Mississippi

The GOP-held Mississippi house last week voted to pass the latest version of a measure to ban abortion as early as six weeks into a pregnancy. Except in cases of medical emergency, SB 2116 would prohibit a person from performing an abortion on a pregnant person once a fetal heartbeat has been detected. Eight Democratic lawmakers joined Republicans last Monday to approve the senate-backed measure in a 78-37 vote.

The bill needs one more procedural vote in the state senate before it heads to Republican Gov. Phil Bryant, who has vowed to sign it.

North Dakota

The North Dakota legislature passed HB 1336, which would require a physician to inform a pregnant person seeking an abortion that it may be possible to “reverse” the effects of an abortion-inducing drug. The state senate on Friday passed the measure in a 34-11 vote. Three Democratic lawmakers joined Republicans to pass it: state Sens. Jim Dotzenrod (D-Wyndmere), Tim Mathern (D-Fargo), and Larry Robinson (D-Valley City).

Republican Gov. Doug Burgum has not yet indicated if he will sign the measure.

Ohio

In a 19-13 vote, Republicans in the Ohio state senate last Wednesday passed SB 23, which would ban abortion as early as six weeks into a pregnancy. The measure would make it a felony to perform or induce an abortion on a pregnant person if a fetus has a detectable heartbeat. The bill is pending in the state house, where it’s expected to pass. The Republican-majority General Assembly passed similar measures in 2016 and 2018, but they were vetoed by then-Gov. John Kasich (R).

Republican Gov. Mike DeWine, however, has vowed to sign this year’s bill into law.

Oklahoma

The state senate on Thursday passed SB 195, which would ask voters to approve a constitutional amendment that says nothing in the state constitution secures or protects the right to perform or receive an abortion. The proposal is similar to an amendment approved by voters last year in West Virginia. Originally a “personhood” bill granting constitutional rights to embryos and fetuses, the measure was amended while in committee to ban abortion if conservatives on the U.S. Supreme Court overturn Roe v. Wade. The measure was amended a second time to its current form while on the state senate floor. The proposal states that nothing in the state constitution may be read to prevent statutes from being enacted to prohibit or regulate abortion.

The measure is now pending in the state house, where it will need to pass by simple majority before it can be presented to voters.

Utah

The Utah legislature last week passed HB 136, which would ban most abortions 18 weeks into a pregnancy. Current state law allows abortions up until a fetus is viable outside of the womb. The measure includes exceptions for rape, incest, life of the pregnant person, and if the fetus has a lethal defect or severe brain abnormality. State senate Republicans last Wednesday passed the measure in a 23-6 vote.

Republican Gov. Gary Herbert hasn’t indicated whether he will sign it into law. If he does, Planned Parenthood is preparing to challenge the law in court.

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