Under an Arkansas law passed late last month, women can no longer undergo the most common procedure to induce second-trimester abortion even if they became pregnant due to rape or incest — and abortion rights groups are promising to sue.
The law, called the “Unborn Child Protection from Dismemberment Abortion Act” and set to take effect in August, bans what is known as dilation and evacuation, or D&E. It’s generally seen as the safest way to abort a second-trimester pregnancy; other options include induced labor and hysterectomy.
Outlawing D&E, abortion rights groups argue, effectively criminalizes second-trimester abortions. But it’s the approach increasingly being used by lawmakers in many states to make abortion more difficult to obtain.
Arkansas is just the most recent state to pass a law banning the D&E procedure. Kansas was the first to outlaw it, in 2015. A few months later, Oklahoma did the same. Then, in 2016, Alabama, Louisiana, West Virginia, and Mississippi followed suit. This year, state legislators in at least 10 states across the country have introduced anti-D&E bills, according to research provided by the Guttmacher Institute, a nonprofit research group that supports abortion rights.
This is despite the fact that multiple court rulings have determined that such bans are likely unconstitutional.
“There is a line of Supreme Court cases that make clear that states cannot ban the most common method of abortion in the second trimester,” said Amanda Allen, the senior state legislative counsel for the Center for Reproductive Rights. In 2006, the Supreme Court ruled that a law banning a specific type of D&E procedure known as D&X was constitutional — largely, Allen said, because that law didn’t prohibit doctors from performing other kinds of D&E.
Arkansas Gov. Asa Hutchinson disagrees, telling BuzzFeed News that his state’s new law isn’t a “prohibition of abortion in the second [trimester], rather it is simply restricting a specific method of abortion in the second trimester.”
Arkansas Sen. David Sanders, who sponsored the act, told VICE News in an email to contact Arkansas Rep. Andy Mayberry, another sponsor. Rep. Mayberry could not be reached.
VICE News also reached out to several lawmakers in other states who have introduced D&E bans this year. Chloe Zittle, legislative director for Pennsylvania Sen. Michele Brooks, said Brooks was so passionately opposed to “dismemberment abortions” that she was willing to risk the law being challenged in court.
“I think that’s just sort of a course that we’ll have to get to down the road,” Zittle said.
While the bans in West Virginia and Mississippi have yet to be challenged, state and district court cases in the other four states that have passed D&E bans have prevented the laws from ever taking effect, with judges ruling that the bans are likely unconstitutional.
This year, legislators in Illinois, Maryland, Missouri, New Jersey, New York, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Texas have all submitted bills to outlaw D&E, which the bills often dub “dismemberment abortion.” Like the Arkansas law, many of the bills make no exception for women who become pregnant as a result of rape or incest.
Elizabeth Nash of the Guttmacher Institute said that state lawmakers who propose D&E bans often propose new abortion restrictions every year, meaning they continually need to find new ways to make abortions more difficult to obtain. “[Legislators] have to come up with a new model that will catch fire and become a trend,” Nash said.
Last year, Arkansas banned abortions after 20 weeks except in the case of rape, incest, or medical emergencies.
Nash credits the popularity of D&E bans to last year’s Supreme Court case Whole Woman’s Health v. Hellerstedt. Before that decision, Nash said, anti-abortion bills tended to focus on the provider and on the dangers women reportedly faced from abortion. In Whole Woman’s Health, the Court found that Texas’ anti-abortion bill HB2, whose stringent medical requirements for abortion clinics led to closures across the state, was unconstitutional.
“Abortion opponents have heard that, and they’re now switching back to a different tactic, which is to focus on the fetus,” Nash said. “Now the woman is completely out of the picture.”