Yes, Recent Anti-Abortion Bills Are Outrageous, but Do Any Have a Real Shot at Being Held Up in Court?

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July 11 2013 11:08 AM

These Anti-Abortion Bills Are Outrageous

But do any have a real shot at being held up in court?

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Texas state Sen. Wendy Davis leads a rally in support of Texas women's right to reproductive decisions on July 1, 2013, in Austin, Texas.

Photo by Erich Schlegel/Getty Images

You’ve seen Texas legislator Wendy Davis in her pink sneakers and shuddered over the murder trial of baby killer Kermit Gosnell. Meanwhile, various states are passing increasingly extreme abortion restrictions. But with bill after bill, it’s hard to keep track and easy to get swept up in the outrage. What’s the bigger picture here, and which of these laws have a real shot at being upheld in court? After all, while the wave of legislation comes out of a deep and abiding rift, a lot of it is also political theater—of use to both sides. Let’s go from least to most plausible—from the laws that are largely symbolic to the ones that keep pro-choice lawyers up at night.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

First-trimester bans

The laws that make a statement, but won’t go into effect without an outright reversal of Roe v. Wade, are the ones that attempt to outlaw abortion early in pregnancy. North Dakota has a new one timed to detection of the fetal heartbeat, which is usually at around six weeks. (Ohio considered a fetal heartbeat bill in 2011 and 2012 but didn’t pass it.) In March, Arkansas banned abortion 12 weeks after a woman’s last menstrual period. These laws will all be struck down in court. That has already happened in Arkansas, and challengers await a ruling in North Dakota.

18- and 20-week bans

Eleven states now ban abortion at some point during the second trimester, before a fetus is viable. That number may soon be 12, if the Texas bill that Davis succeeded in temporarily stopping with her crowd-supported filibuster winds up passing. In several of these states, doctors probably don’t do abortions after 18 or 20 weeks anyway. But that’s not the case in Arizona, where in 2011, 376 abortions took place in or after the 18th week. (That is only 2.76 percent of the total number of abortions in the state—the vast majority of abortions nationwide take place in the first trimester.) A federal court of appeals struck down Arizona’s 18-week ban this spring, and the Georgia courts (where doctors also perform late second-trimester abortions) have also blocked that state’s 20-week ban.

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Abortion opponents give two justifications for these bans: preventing fetal pain (though there’s scant evidence that fetuses can feel pain at this point) and protecting women’s health. The idea there is that since the rate of complications for abortion rises in the second trimester, banning the procedure at this point keeps women safe. But giving birth is still riskier than having an abortion at 18 or 20 weeks. Never mind: The 18- and 20-week bans appeal to their supporters because they keep the focus on abortions at a later stage of fetal development, for which there’s far less public support. And they could get sympathy from Justice Anthony Kennedy, who joined the Supreme Court’s conservative wing in 2007 to uphold a law banning a particular form of very late-term abortion (so-called “partial birth abortion.”). Upholding a law like Arizona’s, which makes an exception for protecting the life of the mother, but not for protecting her health, or for a serious birth defect, would be a far more drastic step for Kennedy to take. After all, he’s still one of the three justices who crafted Planned Parenthood v. Casey, the 1992 ruling that upheld Roe’s basic framework. You can see why abortion opponents like the 20-week bans, but Kennedy would have to turn his back on Casey and the two decades of rulings that followed to let one of the new laws stand.

Medication abortions

Twelve states now have laws that go after abortions delivered by pills in the first trimester. Medication abortions are becoming increasingly popular. But if you oppose abortion from conception, then they are a threat. Abortion opponents are trying to make them more expensive and less available—once more, in the name of protecting women’s health—by barring abortion providers from prescribing the medication via teleconference. Clinics use teleconferencing to expand services in rural areas. States with telemedicine bans require the doctors to be in the same room when the pill is swallowed, even if a trained nurse or physician’s assistant is there. (This is also a fight over credentialing.) So far, Wisconsin’s law has been blocked in court; challenges are pending in other states. This is a legal fight that’s just beginning.

TRAP laws

TRAP stands for targeted regulations of abortion providers. These laws differ in the fine print, but the common goal is to make it prohibitively expensive, or simply impossible, for providers to operate. Often the first step is to require an abortion clinic to meet the same regulatory standards as an ambulatory surgical clinic (a facility that’s not a hospital but does outpatient surgery), which often costs too much money for a clinic to do. It doesn’t matter if the abortion clinic only does first-trimester procedures that are far simpler and less risky than many other kinds of surgery. Twenty-six states now have these laws. And other more onerous red-tape requirements have gone into effect in states like Kansas, threatening or succeeding in shutting down clinics. This is another aspect of the Texas bill Davis tried to block.

The latest breed of TRAP law requires abortion providers to have admitting privileges at a local hospital. Sounds reasonable, right? The state is just making sure that a patient with complications can get the care she needs. Except that any patient who shows up at an emergency room gets care. Her doctor doesn’t need to be affiliated with the hospital. The underlying goal is to use the hospitals’ denial of admitting privileges to shut down the clinics. “For hospitals to decide whether to allow or deny abortion—that’s new,” says Elizabeth Nash, state law expert for the Guttmacher Institute. Seven states now have these laws, though so far they’ve only gone into effect in Tennessee, Utah, and partially in Kansas. (Two of the state’s four clinics challenged the law, and it’s been blocked for them.) In Wisconsin and North Dakota, suits have recently been filed. And in Alabama and Mississippi, judges have blocked these laws. Providers at Mississippi’s lone clinic actually tried to get the admitting privileges. It was after no hospital would grant them that the judge stepped in.

The legal argument against laws requiring hospital admitting privileges is that they impose what the Supreme Court calls an “undue burden” on women exercising their right to have an abortion. In other words, they’re about shutting clinics down, not patient safety. Still, here’s what has pro-choice advocates worried: In nine states, abortion providers are also required to have an agreement with a hospital that lets them transfer a patient who needs emergency care. (Again, the hospital would have to take the patient in an emergency anyway.) In 2003, an Ohio doctor challenged his state’s law after the hospital he’d worked with canceled their transfer agreement, without giving a reason, and he couldn’t find another hospital to take its place. The doctor wanted a waiver so he could continue to operate, but he essentially lost in federal appeals court. The judges said that because there was another clinic 55 miles away, the law’s effect on this clinic didn’t pose an undue burden to women.

So that’s where we are. The 2010 elections, which put more Republicans in control of statehouses across the country, invigorated abortion opponents and gave them the chance to try new bills. In 2011 and 2012, 135 abortion restrictions passed in the states—the biggest wave ever. And it’s still cresting, with 43 additional restrictions so far this year. The Gosnell trial, with its spectacle of a lawbreaking doctor killing living babies, has motivated anti-abortion legislators. And groups like Americans United for Life have spurred action by drafting model bills that states can use as a blueprint. Once one legislature has a law in its sights, the pressure is on for other conservative lawmakers to prove to their base that their commitment is just as strong.

How much is all this affecting women who seek abortions? And if you’re pro-choice, how worried should you be? If you live in a state with a TRAP law that has teeth, clinics may well be shutting down. If there’s a telemedicine ban in effect and you live out in the country, you probably have to drive to a city now to take the pills you need. The overarching point is this: In many red states, abortion is truly becoming less accessible. But as significant as these new laws are, no state has yet succeeded in winning the race to be the first without a clinic. The courts still stand between the legislature and the patient. And for the most part, they are on her side.

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