Roe v. Wade and the constitutional right to an abortion are expected to be repealed by the Supreme Court in July, giving anti-abortion advocates the win they have sought for more than 50 years, according to both sides of the abortion debate.
But Republican-led state legislatures from Florida to Idaho aren’t waiting. Abortion is now prohibited in as many states as possible because they are acting as if Roe has already been overturned.
If a fetus is viable outside of the body at roughly 23 weeks of pregnancy, then the state cannot prohibit abortion. Legislators, on the other hand, are debating bills that would criminalize abortion at six, 12, or 15 weeks of pregnancy.
Opponents of the 15-week ban in Florida on Thursday warned that it would be unconstitutional as long as Roe stands. There was a Senate committee voted to ban abortions for 30 days from the “probable” beginning of a woman’s last monthly cycle in Oklahoma.
A safe and legal workaround for abortion rights advocates has been thwarted by some states’ efforts to restrict or ban the use of abortion-inducing drugs.
A number of states have passed legislation similar to those that the Supreme Court allowed to take effect in Texas. Anyone who “aids or abets” an abortion after the sixth week of pregnancy in Texas is eligible for a $10,000 settlement and legal fees if a case is successful.
The preborn child’s “sibling,” the Idaho Senate advanced a bill on Thursday that would give at least $20,000 to family members who suit.
Recent action in state legislative sessions shows a post-Roe America in which abortion rights will be returned to the states following a frenzy in the Supreme Court. Abortion has become enshrined in a number of states, including California and New Jersey. But far more are attempting to limit it.
The state policy director for the anti-abortion Susan B. Anthony List, Sue Liebel, stated, “All the gloves are off and everybody’s trying different approaches.” Try as they may, it’s an example of the best of the American spirit and ingenuity at work. That’s something I expect to see more of. State governments, I believe, are seeking for that.”
The Supreme Court’s arguments in December were so encouraging to anti-abortion advocates that the general counsel for Americans United for Life urged states to “not hesitate to pass the strictest possible abortion limits.”
This year, 40 states have passed at least 531 anti-abortion measures, according to the Guttmacher Institute, a pro-choice group. Last year, states enacted the most anti-abortion legislation in a single year since the Supreme Court’s 1973 Roe decision.
In the midst of the most “urgent issues” of the 2022 legislative session, legislation to restrict access to pharmaceutical abortion is the latest frontier. The Food and Drug Administration permanently lifted a restriction that the drug is received in person, allowing it to be provided by mail.
According to Guttmacher, medications will be used in more than half of all abortions performed in 2020. The administration of the medications, on the other hand, is being banned in many places or at least delayed until the patient returns for a second or third appointment.
Abortion can only be performed after 15 weeks in Mississippi when the “probable gestational age of an unborn human” is more than 15 weeks old, which is the subject of a Supreme Court lawsuit currently before the court.
The state has requested that the court overturn Roe v. Wade as well as uphold the current statute. State bans on abortion before viability can be established outside of the womb are now unenforceable.
“Undue hardship” on women seeking an abortion before viability was upheld in Planned Parenthood V. Casey, the Supreme Court’s 1992 ruling affirming Roe.
State legislators who opposed abortion for nearly two decades following Casey did not enact gestational age prohibitions of less than 23 weeks. In light of Roe’s overwhelming backing, they feared that the Supreme Court might even increase abortion availability.
Both sides expect the Supreme Court will rule that there is no constitutional right to abortion, given the anti-abortion views of the three judges selected by former President Donald Trump and the questions the justices have presented.
Congress must adopt a bill recognizing the right to abortion before anti-abortion advocates have any legal recourse against new state bans. Republicans in the Senate said last week that they would not entertain such a measure.
While anti-abortion politicians continue to take a belt-and-suspender approach, they are hoping that one or another new law will effectively criminalize abortion when the court rules.
Already, twelve states have what are known as “trigger laws,” which forbid abortion if the Supreme Court overturns or strikes down Roe v Wade’s primary decision. Other limits are also being put in place in the event that the Supreme Court doesn’t go as far as that.
A trigger prohibition is already in place in Oklahoma, for example. As it now stands, the state requires women to wait 72 hours after consulting with a medical physician before having an abortion, and the normal menstrual cycle lasts 28 days.
Additionally, Texas-style enforcement of a ban at six weeks was approved by the same state Senate committee that also approved an amendment to the state constitution stating that the state does not provide a right to abortion, as well as an expanded trigger law banning abortion regardless of whether the Supreme Court “in part” overturns Roe.
Cascaded bans are also in place in Missouri and Tennessee, which anticipate the gestational age that courts may allow. Six, eight, 10, 12, 15, 18, 20, and 22 weeks after a woman’s last menstrual period is when Tennessee’s ban on abortion takes effect, preventing the procedure.
Judicial Crisis Network President Carrie Severino likened it to “having a reserve price on eBay,” a reference to the Supreme Court’s Roe decision. ‘Great, we have one of those’ if the court believes 15 weeks, not six weeks, is an adequate limit.'”
Abortion for the sake of saving the mother’s life is included in the majority of proposed legislation. Despite this, states are taking a hard line. If a woman can’t get an abortion, she shouldn’t be allowed to terminate her pregnancy “based on an allegation” that she means to kill herself if she can’t. Abortion is likewise defined as homicide in this bill.
There are still regulations in place to make it more difficult for women to receive an abortion if the Supreme Court decides against overturning Roe. Abortion clinics would be required to pay thousands of dollars to personally cremate the ashes of each fetus under an omnibus bill that is likely to pass in Kentucky.
Planned Parenthood, which operates one of the state’s two remaining abortion clinics, has stated that the costs would force it to quit delivering the procedure.
With a compromise in mind, the Supreme Court might uphold Mississippi’s 15-week abortion ban but not overturn Roe. That’s not a possibility for any side. It is likely that the Supreme Court will be asked to rule on new issues involving state restrictions, which are already being heard by federal courts.
After all, “we would just be drawn into another cycle of endless abortion litigation,” Severino added. Aside from Roe supporters, justices were told during oral arguments that a decision to preserve the Mississippi statute would effectively invalidate the Supreme Court’s landmark decision.
It’s up to the governor or state attorney general to determine whether or not Roe was abolished “in whole or in part,” even if the court takes a middle ground.
Approximately two-thirds of Americans believe that Roe v. Wade should remain the law of the land. Over two-thirds of respondents to a January Gallup poll indicated they had some level of dissatisfaction with the country’s abortion legislation, with most of them citing a lack of flexibility.
After two decades of Americans saying they were disappointed that regulations weren’t strict enough, there was a dramatic shift in sentiment.
It is possible that some legislators who previously supported limitations on abortion may reconsider their position now that stronger laws are more likely to be implemented rather than delayed by the courts.
In at least four states, the six-week moratorium on Texas-style enforcement has been rejected by legislatures. Two of those states’ legislators, from South Dakota and Arkansas, pushed to delay action until the outcome of Roe.
Legislators in Florida and Arizona are anticipated to follow suit with the 15-week restriction, which they see as a compromise.