Over the last several weeks, Ohio lawmakers tried to pass one of the toughest abortion restrictions in the country, one that would ban the procedure after the detection of a fetal heartbeat, about six weeks into a pregnancy. That's before most women even know they're pregnant.
Now, other state legislatures are trying to do the same.
Lawmakers in Kentucky, Missouri, and South Carolina have pre-filed bills for consideration in next year’s legislative session that would also ban abortion after a fetal heartbeat can be detected. In fact, at least 17 bills that would somehow restrict abortion have already been pre-filed or introduced in state legislatures, according to the Guttmacher Institute — even though most legislatures are shut down until 2019.
All 17 were proposed in states where Republicans will control both the state legislature and the governorship in 2019.
“Like five, six years ago, you would see pre-files for ‘fetal personhood’ or some kind of abortion ban, and it just wasn’t something that rose to a large concern,” said Elizabeth Nash, senior state issues manager for the Guttmacher Institute. “Now, they have traction. People are talking about them. People are organizing for and against them.”
The Guttmacher Institute didn’t maintain a tally of the number of anti-abortion bills pre-filed ahead of the 2018 and 2017 legislative sessions, but newly minted Supreme Court Justice Brett Kavanaugh has utterly transformed the fight over abortion rights.
“Conservatives are starry-eyed over the potential of Brett Kavanaugh.”
Kavanaugh generally refused to divulge his own beliefs about abortion during his tumultuous confirmation hearings in October. But advocates on both sides of the fight over abortion are confident that, should a case involving an abortion restriction come before the Supreme Court, he’ll cast the deciding vote to overturn Roe v. Wade, the 1973 decision that legalized abortion nationwide.
As Nash put it, “Conservatives are starry-eyed over the potential of Brett Kavanaugh.”
Not every anti-abortion bill pre-filed for 2019 aims to directly challenge Roe and create an opportunity to overturn it . Instead, several are trying to prepare for a future where states can once again freely regulate access to abortion. In Texas, for instance, one pre-filed bill would change the state’s constitution to clarify that “the right to life applies to an unborn child” and prohibit abortion “to the fullest extent authorized under federal constitutional law as interpreted by the United States Supreme Court.”
In other words, if the Supreme Court were to grant the states the ability to regulate abortion, abortion would automatically become illegal in Texas.
In New Hampshire and Montana, where Democrats and Republicans share control of the state government, four Republican legislators have requested that drafts be written up for five additional bills that deal with abortion. Those drafts are not yet widely available, but each legislator has a history of anti-abortion positions.
Lame-duck legislatures are also still working on sending anti-abortion bills to their governors’ desks before this session ends. Earlier this month, Michigan lawmakers sent Republican Gov. Rick Snyder — who’ll soon be replaced by an abortion rights-supporting Democrat — a bill that would make permanent a ban on doctors remotely prescribing pills to induce abortions. That bill still awaits Snyder’s signature to become law.
And even though Ohio Republican Gov. John Kasich vetoed the fetal heartbeat bill, he signed into law a bill that bans dilation-and-evacuation abortions, which are commonly used to end second-trimester pregnancies.
All that may sound dire for abortion rights advocates, but the number of abortion restrictions adopted by states in 2018 fell dramatically, according to an early-December tally by the Guttmacher Institute. Thirteen states adopted 26 new restrictions on reproductive healthcare and education; 22 of those measures specifically dealt with abortion. Last year, 19 states enacted 63 measures to restrict abortion access.
This year was also the first in recent memory when state legislatures passed more measures to broaden access to reproductive health than to narrow it. Twenty-nine states and Washington, D.C., enacted 80 bills that strengthened sexually transmitted infection testing and treatment, sex education, and access to birth control, among other protections.
Just five, however, increased access to abortion, the Guttmacher Institute found.
So far, just three pre-filed bills are trying to expand abortion access, according to the Guttmacher Institute. In Texas, Democratic Rep. Jessica Farrar wants to rewrite the regulations governing a pamphlet that must be given to women seeking abortions, which would include stripping the pamphlet of language suggesting that abortion has been linked to an increased risk of breast cancer. (The American College of Obstetricians and Gynecologists has found no causal relationship between abortion and a woman’s risk for breast cancer.)
Fararr has also proposed a bill that would erase the waiting period between a woman’s first appointment for an abortion and the procedure itself. (Right now, women in Texas have to wait 24 hours.)
And California Democratic Sen. Connie Levya has once again introduced a bill that would require state public universities to offer abortion-inducing pills on campus after the state’s outgoing governor, Democrat Jerry Brown, vetoed the measure. He called it “not necessary.”
Cover image: Janet Folger Porter, president and founder of Faith 2 Action, posts signs during a press conference at the Ohio Statehouse in Columbus, Ohio on Tuesday, Feb. 14, 2012. (AP Photo/Columbus Dispatch, Brooke LaValley)