Editor’s Note: This piece will be updated as news around the laws progresses. Last updated July 3 at 3:18 p.m.
On May 17, the Missouri legislature passed HB 126, making Missouri the sixth state this year to pass a law banning abortion before many people even realize they are pregnant. Republican Gov. Mike Parson signed the bill into law on May 24. The Missouri legislature’s move came just days after Republican lawmakers in Alabama passed an extreme measure that would criminalize almost all abortions in the state.
This is by design. Conservatives have had their sights set on undermining—if not outright overturning—Roe v. Wade from the moment the U.S. Supreme Court issued the decision 46 years ago. And now, states are clamoring to pass unconstitutional pre-viability abortion bans in the hopes that the Court’s conservative majority will revisit Roe and kill it.
Here at Team Legal, we wanted to provide an overview of where these unconstitutional bans are being enacted, what penalties they carry, and anything else you might need to know about them.
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At the outset, it’s important to note one thing: As Rewire.News‘ Denny Carter recently wrote, “at six weeks’ gestation, there is no heart, there is no heartbeat, and there is no fetus. Instead, there is a ‘fetal pole,’ a thick area alongside the yolk sac that extends from one end of an embryo to the other. What can be measured in six weeks is electrical activity in that pole.”
Anti-choicers have latched on to the term “heartbeat,” and the notion that an embryo has one at six weeks’ gestation, in order to distract from the fact that so-called heartbeat bans are near-total abortion bans. This is a critical distinction, because recent studies have shown that people support fetal “heartbeat” bans until you tell them that these laws would end abortion care for most pregnant people.
And that’s because—and we’re going to type this loudly—MOST PEOPLE DON’T KNOW THEY ARE PREGNANT AT SIX WEEKS’ GESTATION.
Even if you have regular periods and are diligent about tracking them, you may still be timed out of obtaining an abortion because of the time it takes to take a home pregnancy test, make an appointment with a doctor to verify the positive result, and think about next steps. And that’s not to mention the myriad roadblocks—like forced ultrasound requirements and mandatory 72-hour waiting periods—that some states have erected to make obtaining abortion care more difficult and which will make it impossible to obtain an abortion within a six- or even eight-week window.
Indeed, some providers won’t even perform abortions until they can confirm the pregnancy by ultrasound and ensure that the pregnancy is not ectopic. That doesn’t happen until after six weeks, because at six weeks the embryo is too small to be visible on an ultrasound.
The long and short of it is this: Six-week bans are effectively total abortion bans, and legislators are manipulating people’s emotions by referring to these sorts of pre-viability bans as “heartbeat” bans in order to distract from the fact that they will end abortion care. We’ll be using the term throughout this piece, because we’re writing about the language in the bills, but it’s imperative to keep that in mind.
On March 15, Kentucky Gov. Matt Bevin signed SB 9 into law, making Kentucky the fourth state (after Arkansas, Iowa, and North Dakota) to enact a ban on abortion once a so-called fetal heartbeat is detected. Under the law, an abortion provider must test for a fetal heartbeat prior to the procedure. If a fetal heartbeat is detected, they would be prohibited from performing or inducing an abortion. The law provides exceptions to prevent a serious risk of irreversible impairment or the death of the pregnant person. There are no exceptions for rape or incest. Any health-care provider who performs an abortion in violation would face a Class D felony charge—punishable by one to five years in prison.
Like its predecessors, the near-total abortion ban was quickly blocked in federal court when a district judge issued a temporary restraining order, halting its enforcement.
So what does this mean for Kentucky? Abortion is still very much legal! A 2018 state law prohibiting certain abortion procedures after 11 weeks was recently struck down, so pregnant people wishing to obtain an abortion in Kentucky may still do so until 20 weeks into their pregnancy.
On March 21, Mississippi Gov. Phil Bryant signed SB 2116 into law, banning abortion once a fetal “heartbeat” has been detected. Similar to Kentucky’s measure, the law only provides an exception for when an abortion is necessary to prevent a serious physical impairment or the death of the pregnant person. There are no exceptions for pregnancies that are the result of rape or incest. A physician who performs an abortion after a heartbeat is detected would risk having their medical license revoked, spending up to six months in prison, and/or being fined up to a thousand dollars.
The near-total abortion ban is scheduled to take effect July 1. The Center for Reproductive Rights expanded a separate lawsuit against the state over a 2018 law banning abortion at 15 weeks’ gestation to include a legal challenge against SB 2116. At least for the next month and a half, abortion up to the 20th week of pregnancy is still legal in the state of Mississippi. On May 24, Judge Carlton Reeves blocked SB 2116.
On April 11, Ohio Gov. Mike DeWine signed SB 23 into law, the legislature’s third (and unfortunately, successful) attempt at banning abortion as early as six weeks into a pregnancy. Except in cases of medical emergency—life endangerment or serious risk of irreversible impairment of the pregnant person—a physician may not perform an abortion when a fetal “heartbeat” has been detected. The law does not contain any exceptions for rape or incest. A person who performs an abortion in violation would face fifth-degree felony charges—punishable by six to 12 months in prison and a fine.
The ban was scheduled to take effect July 11. A federal judge temporarily blocked the law on July 3 while the American Civil Liberties Union (ACLU)’s legal challenge winds its way through the courts. For now, pregnant people can still legally access abortion care up to 20 weeks’ gestation.
On May 7, Georgia Gov. Brian Kemp signed HB 418 into law, banning abortion as early as six weeks into a pregnancy and possibly outlawing all other forms of reproductive health care. The measure bans abortion once a fetal “heartbeat” has been detected unless it’s necessary due to a medical emergency. The law includes an exception for pregnancies that are the result of rape or incest—but only if the pregnancy is less than 20 weeks and the pregnant person has reported it to law enforcement. The law also contains a fetal “personhood” provision that defines “natural person” to mean “any human being including an unborn child”—which could mean that fetal rights will be placed above the rights of a pregnant person.
But that’s not all. The law also requires any abortion after the first trimester be performed in a licensed hospital, in a licensed ambulatory surgical center, or in a licensed abortion facility. Only a licensed physician may perform an abortion.
HB 418 won’t take effect until the beginning of next year. While nothing has been filed yet, a legal challenge will definitely be happening. And like the others, the law will likely be blocked before it can even take effect. So for the foreseeable future, it’s still legal in the state of Georgia to obtain an abortion up to the 20th week of pregnancy.
On Wednesday, Alabama Gov. Kay Ivey signed HB 314 into law—the most restrictive and severe abortion ban in the country. Republican lawmakers in Alabama decided “heartbeat” bans weren’t enough, and figured the best way to make it to the Supreme Court would be to outlaw all abortions, period.
Except in cases in which abortion is necessary to prevent death or a serious health risk to the pregnant person, the “Human Life Protection Act” makes abortion a Class A felony—punishable for the performing physicians with up to 99 years in prison. An attempted abortion would be a Class C felony, punishable by one to ten years in prison. Abortions for ectopic pregnancies or fetuses with lethal anomalies would not apply. Republicans refused to include an amendment that would have allowed an exception for rape or incest.
The law isn’t scheduled to take effect until November, and the Alabama ACLU is already preparing to file a lawsuit. There is no doubt that this ban—like all the others before it—will be blocked from taking effect. Until the Supreme Court says otherwise, abortion is still legal. Abortion providers in Alabama can still legally perform the procedure for any pregnant patient through the 20th week of pregnancy. On May 24, the ACLU, ACLU of Alabama and Planned Parenthood Federation of America filed a lawsuit challenging the law.
The Missouri state legislature passed HB 126, an omnibus abortion law which would ban abortion at eight weeks’ gestation and trigger a statewide abortion ban if conservatives on the Supreme Court overturn Roe v. Wade. The measure makes it a felony punishable by up to 15 years in prison to perform an abortion at eight weeks’ gestation: the point at which the bill claims—with no basis in actual science—that a fetus with a detectable heartbeat is more likely to be a viable pregnancy. If a court rules that unconstitutional, then the prohibition would be at 14 weeks. If a court strikes that down as well, it would be at 18 weeks. If that doesn’t work, the prohibition would be at 20 weeks.
The law also bans abortion if the pregnant person is seeking it because of the sex or race of the fetus or due to a diagnosis indicating fetal Down syndrome. If the pregnant person seeking an abortion is a minor, both parents of the minor would need to be notified. If the parents are divorced and have joint custody, the consenting parent would be required to notify the other custodial parent.
Several provisions of the law are clearly unconstitutional, but Missouri Gov. Mike Parson (R) couldn’t wait to sign it. Most provisions won’t take effect until August. Until then—and well after, because like the rest of these laws, it will almost certainly be blocked in court in one fell swoop—abortion is still legal in the state of Missouri up to the point of viability.
On May 29, the Louisiana House passed SB 184, which bans abortion once a fetal “heartbeat” is detected. The bill provides exceptions for when it’s necessary to prevent a serious physical impairment or death of the pregnant person or when a pregnancy is diagnosed as “medically futile.” The bill does not include any exceptions for pregnancies that are the result of rape or incest. A physician who performs or induces an abortion after a fetal “heartbeat” is detected would have their medical license revoked, be fined up to $1,000, and face up to two years in prison.
Gov. John Bel Edwards signed SB 184 into law on May 30. It will only take effect if the United States Court of Appeals for the Fifth Circuit upholds the nearly identical ban being challenged in Mississippi. To be clear, abortion through the 20th week of pregnancy is still legal in the state of Louisiana.
The state house last month passed H 3020, which would prohibit performing, inducing, or attempting to perform an abortion on a pregnant person when a fetal heartbeat has been detected. Except in cases of medical emergency or when a pregnancy is the result of rape or incest, a person who performs an abortion when a fetal heartbeat has been detected would be guilty of a felony—punishable by a fine of $10,000 and/or two years in prison.
Ending on a positive note, this bill isn’t going anywhere. South Carolina lawmakers wrapped up their 2019 legislative session last week, so the bill won’t even be considered again until 2020. In the meantime, abortion through the 20th week of pregnancy is still legal in the state of South Carolina.