In late October, Pennsylvania state Rep. Stephanie Borowicz (R-Clinton County) and state Sen. Doug Mastriano (R-Franklin County) introduced a bill banning abortions as early as six weeks into a pregnancy. During the press conference, Borowicz said the bill could be the “dagger in Roe v. Wade.”
Bold language from anti-abortion lawmakers and advocates—in which they admit that extreme abortion restrictions are designed to challenge the constitutionality of abortion codified under Roe—is on the rise, reproductive rights experts say.
Ohio state Sen. Kristina Roegner (R-Hudson) introduced such a bill in February and told the Independent, “The primary purpose is to save human life. But we’re not going to shy away from it going to the [U.S.] Supreme Court with the intention of overturning Roe v Wade.”
In July 2018, Catherine Glenn Foster, president and CEO of Americans United for Life (AUL), told Fox News’ Dana Perino that “Roe v. Wade was wrongly decided, and we do expect it to be overturned, now more than ever.”
Experts on reproductive health and rights explained the factors behind why those opposed to abortion are speaking differently about their efforts to completely ban it. They feel emboldened by Justices Brett Kavanaugh and Neil Gorsuch, who are now seated on the Supreme Court, and by President Donald Trump’s extreme language on abortion; they’re hoping to excite people and bring them to the cause; and many states are running out of restrictions to place on people who can get pregnant, so extreme restrictions and language are the only place left to go.
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This year, nine states had enacted gestational age bans by July—none of which have taken effect as they all wind their way through the federal courts. Georgia, Kentucky, Louisiana, Mississippi, and Ohio banned abortion at six weeks of pregnancy, and Missouri banned abortion at eight weeks. Utah and Arkansas banned abortion at 18 weeks. Alabama enacted the most severe law—a total abortion ban—in May. Meanwhile, the Supreme Court is set to hear arguments in a case next year on another Louisiana law that requires doctors who perform abortions to have admitting privileges at a local hospital. The argument date hasn’t been scheduled yet.
Maria Elena Perez, deputy director of the National Latina Institute for Reproductive Health (NLIRH), said that the most marginalized people seeking abortions will be most affected by the overturning of Roe and these state laws, which were passed in states in the South with high populations of women of color and a quickly growing Latinx population.
“Women with means will always seek abortion care where it is available, but low-income communities face so many barriers to reproductive care already. They will be hardest hit if these bans are enacted and Roe is overturned,” she said. “Many Latinas and Latinx people and other women of color work multiple jobs that provide no sick days or insurance coverage, and they live in underserved communities. Many of them have neither the time nor the resources to travel to another state to access abortion services.”
Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a research and policy organization focused on reproductive health and rights, said she began to notice a shift in language when Iowa Gov. Kim Reynolds (R) signed a six-week ban in May 2018. Nash said that anti-abortion groups and lawmakers had once focused on language around women’s health, but then turned to language on protecting fetal rights and dignity. Now, she said, they’re focused on language about overturning Roe.
Nash said she has also noticed that in the decades-old debate among anti-abortion groups and activists between banning abortion directly or piling up restrictions and regulations to essentially ban abortion, the former strategy is beginning to re-emerge and usurp the gradual approach.
“Those who wanted to pile up restrictions had been the most successful in the sense that they had been following that approach. Now we have moved into this year where we have seen these legislatures move in a different direction,” she said. “Part of that has really been teed off of a more conservative U.S. Supreme Court. But some of these legislatures have also set themselves up for this because they have had so many restrictions that really the only thing left to do was ban abortion.”
Erin Matson, co-founder and co-director of Reproaction, a direct action group that advocates for increasing access to abortion and reproductive justice, said she has noticed that even organizations such as AUL, which typically advocated for a more incrementalist approach, are becoming “more comfortable” with abortion bans that don’t fit that strategy.
Matson and Nash said that Trump’s extreme language on abortion has signaled to anti-abortion groups and lawmakers that they can go more extreme with the issue. This year, Trump has made false claims about patients and doctors having the ability to “execute” babies during a rally in Wisconsin and lied about New York legislation that he said “would allow a baby to be ripped from the mother’s womb.”
“We’ve seen a coarsening in discourse and tactics since [Trump entered the presidential race in 2015],” Matson said. “That’s been the case on abortion specifically since he was a candidate to this recent year when he has put forward extremely inflammatory criminal claims that are not true about abortion at rallies around the country. Abortion opponents have been emboldened with horrific rhetoric that supports a climate of violence against abortion providers. They’re just going for the jugular.”
Trump’s language echoes the rhetoric of the extremist anti-abortion, anti-LGBTQ, anti-Muslim group Operation Save America. At a protest outside an abortion clinic in Milwaukee this year, several demonstrators from the group said people who get abortions should be punished. Some activists supported the execution of people who have abortions. Two men said doctors who perform abortions should be executed.
Another reason for the increased openness about the strategy to overturn Roe may be that extreme abortion restrictions are popular with Republican voters. Abortion is one of the bigger priorities for Republican voters in 2020, according to some recent polls.
A NPR/PBS Newshour/Marist poll released in June found that 16 percent of Republicans said it was the most important factor in deciding their vote for president in 2020. Nineteen percent said there are no circumstances under which abortion should be permitted, and 37 percent said the health-care service should only be allowed in cases of rape, incest, or life endangerment. A whopping 60 percent of Republicans said abortion should be criminalized and laws should be made more strict, and 31 percent said they’d like to see Roe v. Wade overturned. But that changes when you look at the opinions of registered voters overall. Only 14 percent of national registered voters supported overturning Roe, and 60 percent supported decriminalizing abortion and making the laws less strict. Pew Research Center found that this year, public support for legal abortion is “as high as it has been in two decades of polling” at 61 percent of U.S. adults.
While Republican anti-abortion lawmakers have increased their focus and rhetoric around killing Roe v. Wade, Democratic lawmakers who support abortion access haven’t done enough to address these attacks, Matson said. She said she hasn’t seen the Democratic National Committee, Democratic Congressional Campaign Committee, or presidential candidates for the Democratic nomination mention reproductive rights in direct mailing and other communication as frequently as one might imagine during a year of so many extreme abortion bans. (The Democratic presidential candidates did overwhelmingly support expanding abortion rights in a New York Times survey published Monday.)
“Often times, you’ll not see it even mentioned, so there’s still some catch up work to do with the largest organs of the Democratic Party,” Matson said. “[The Democratic Party] has all sorts of important language about increasing access to abortion in its party platform, but it appears to be trying to hide this one out or is oblivious to what’s going on or incapable of mounting the type of response that’s needed.”
Several states have passed laws this year that were designed to protect access to abortion in the face of six-week bans and other restrictions. For example, Vermont lawmakers passed a bill codifying the right to abortion, which the governor has signed into law. New York passed similar legislation that regulates abortion under public law rather than criminal law. Thirteen states have laws that protect the right to abortion, according to the Guttmacher Institute. Nash said that although she has seen some response from states to protect abortion, pregnancy, and contraception rights in response to these extreme bans, there hasn’t been a very strong immediate response.
“It hasn’t been in as many states as you might imagine,” she said. “But it has been in more states than we’ve seen in a very long time because the last time states looked to protect abortion rights was really back in the late ’80s and early ’90s. That was the last time that people really thought Roe was under threat. State legislators are beginning to see that Roe is in jeopardy not only at Supreme Court-level but in state legislatures.”
Maria Elena Perez said that NLIRH is particularly worried that lawmakers are making the case for criminalization of abortion services, a policy that will fall hardest on people of color. According to a Prison Policy Initiative analysis released in May, Black women were 17 percent more likely to be in a police-initiated traffic stop than white women. In 2017, the imprisonment rate for Black women was twice the rate for white women, and Latinas were imprisoned at 1.3 times the rate of white women, according to the U.S. Bureau of Justice Statistics.
“If reproductive health care is criminalized, women of color are likely to bear the brunt of the legal consequences due to inequities in our criminal justice system,” she said. “This is unconscionable, especially at a time when our Latina and Latinx community is already reeling from other hateful, anti-immigrant policies from the Trump administration.”