What Happens When Lawmakers Run Out of Abortion Restrictions to Pass

https://www.nytimes.com/2019/03/20/opinion/abortion-ban-heartbeat-bills.html

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Lost in the anxiety this year over the fate of Roe v. Wade is the reality that state legislatures nationwide are already taking steps to effectively ban all abortions.

Not even three months into 2019, lawmakers in a dozen states have proposed so-called heartbeat bills, which would outlaw abortion at around six weeks of pregnancy, when a fetal heartbeat can be detected, and thus make it all but impossible for nearly all women to get the procedure. Six of those bills have passed in at least one legislative chamber, and on Friday Gov. Matt Bevin of Kentucky signed one into law. Hours later, a federal judge temporarily blocked the Kentucky law, which was to have taken effect immediately.

The court’s action is not surprising. Courts are nearly guaranteed to block these laws — because they’re flagrantly unconstitutional. (With its Roe decision, the Supreme Court enshrined the right to an abortion up to around 24 weeks of pregnancy.) For that reason, heartbeat bills were not given much thought until recently.

Still, the current increase in heartbeat legislation is concerning for some reproductive rights advocates. Opposition to anti-abortion laws can backfire: Anti-abortion forces push them in part because they want to prompt legal cases that could grant the newly abortion-hostile majority on the Supreme Court the opportunity to overturn Roe.

That chance alone, however, doesn’t explain this new trend. Elizabeth Nash, senior state issues manager at the Guttmacher Institute, which researches abortion, noted that the recent cluster of heartbeat bills is also “a reflection of the fact that these states have done everything but ban abortion.” Kentucky lawmakers, for instance, have already passed laws that heavily restrict private insurance coverage of abortion, ban insurance coverage of the procedure for public employees, require a 24-hour waiting period before getting an abortion and mandate parental consent for minors. The state also has just one abortion clinic.

For an anti-abortion lawmaker who wants to signal to his base that he remains committed to the cause, there’s little left to do but to try to outlaw the procedure.

It was not hyperbole for the American Civil Liberties Union to declare on Friday that “Kentucky just banned abortion.” These are effectively full abortion bans. For one thing, many women don’t realize they’re pregnant before six weeks of pregnancy, which is about two weeks after a missed menstrual period. But even the “best case” scenario is difficult to imagine: A woman who has very regular menstrual cycles and notices right away that she’s late would have less than two weeks to purchase and take a pregnancy test, decide that she wants an abortion, schedule one and pull together money for travel costs, child care and the procedure itself.

Things would get even more Kafkaesque in states with few clinics and mandatory counseling and waiting periods. Take Missouri, where a heartbeat bill passed the state House last month. If that bill were to be enacted, a woman hoping to have an abortion in Missouri would have to travel to the state’s lone abortion clinic for state-mandated counseling — during which she would be discouraged from terminating. Then she would have to wait 72 hours before making a second trip to the clinic to get the procedure.

Some physicians won’t even perform abortions before around six weeks of pregnancy; an embryo at that stage is so small that it might not be visible on an ultrasound, which is used to ensure that a pregnancy is not ectopic, or growing outside the uterus.

Given that these bills are so unambiguously unconstitutional, they might seem pointless. But their purpose is clear: to show the anti-abortion voting bloc that conservative lawmakers are willing to do anything — including waging expensive and most likely fruitless legal battles — to keep women from exercising their right to abortion. A heartbeat bill might never go into effect, but if conservatives keep pushing increasingly extreme pieces of legislation, they might ultimately win the war by bringing about the demise of Roe. They’re certainly betting on it.

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